Calcutta High Court (Appellete Side)
(Basudeb Das & Ors vs Jharna Roy & Ors.) on 8 August, 2022
12
08.08.2022
Ct. No. 32
rrc
FAT 262 of 2020
with
IA No. CAN 2 of 2020
(Basudeb Das & Ors. Vs. Jharna Roy & Ors.)
Mr. Subhas Chandra Saha
Mr. Prafulla Pal
.... For the appellants
Mr. Purnendu Das
Mr. K. K. Baral
.... For the respondent
nos. 1 to 4, 7 to 9
The instant appeal has been filed challenging the
judgement and decree dated 7th August, 2020 passed by
the learned Civil Judge, Senior Division, Katwa, Purba
Bardhaman in Title Suit No. 60 of 2010.
Records would reveal that the suit is for partition.
In connection with the aforesaid appeal an application
being CAN No. 2 of 2020 has been filed inter alia
praying for stay of operation of the judgment and decree
dated 7th August, 2020.
Mr. Saha, learned advocate appearing for the
appellants in support of the above application submits
that on 13th January, 1979 Sankari Prasad Das had
made and/or published a Will and had appointed Abhoy
Charan Das, his son, as an executor.
According to the appellants, Abhoy Charan Das
having survived the testator became entitled to obtain
grant of probate. Mr. Saha says that in the year 1985
Abhoy Charan Das died intestate and consequent upon
his death, the legal heirs of Abhoy Charan Das being the
appellants herein, became entitled to the estate of
Sankari Prasad Das in their capacity as legal heir of
Abhoy Charan Das who was also a beneficiary under the
aforesaid Will.
Mr. Saha further submits that an appropriate
application has been filed in connection with obtaining
probate/letters of administration in respect of the Will
made and published by Sahkari Prasad Das.
According to the appellants, the learned trial Judge
did not take into consideration the pendency of the
application for grant of probate/letters of Administration
and had proceeded to pass the partition decree. He
submits that unless the Judgment and Decree is stayed
there is likelihood of multiplicity of Judicial Proceedings.
Mr. Purnendu Das, learned advocate appearing for
the respondent nos. 1 to 4 and 7 to 9 files affidavit in
opposition on behalf of the aforesaid respondents to the
application being CAN No. 2 of 2020. The same is taken
on record. He submits that despite being given several
opportunities, the appellants did not adduce any
evidence before the learned trial Court.
He also denies the contention of the appellants.
Mr. Saha has also filed an affidavit in reply on
behalf of the appellants. The same is also taken on
record.
We have considered the rival contentions. We are
informed that the Commissioner of Partition had already
been appointed and he has already submitted a report.
However, no final decree has been passed.
We are of the view that since the Commissioner of
Partition has already filed its report, the appellants shall
be at liberty to file an objection to the same, if not
already filed.
To avoid multiplicity of proceedings we direct that
the proceedings before the Trial Court may continue,
however, no final decree be passed.
In view of the above, let the hearing of the appeal
be expedited.
As Mr. Das, learned advocate has entered
appearance for the respondent nos. 1 to 4 and 7 to 9,
service of notice of appeal on the said respondents be
dispensed with.
The appellants are directed to put in requisites for
effecting service of notice of appeal upon the respondent
nos. 5 and 6 within two weeks from date.
Lower Court Records be called for through Special
Messenger at the cost of the appellants. Such costs shall
be deposited within two weeks from date.
Immediately, after arrival of the Lower Court Records,
the office shall examine the same and, if found complete,
shall issue notice of arrival of Lower Court Records to the
learned advocates appearing for the appellants.
The appellants are directed to prepare requisite
number of informal paper books-printed, typewritten or
cyclostyled, as the case may be, out of Court, within six
weeks from the date of service of notice of arrival of Lower
Court Records and to file the same after serving a copy
upon the learned advocate appearing for the respondents.
All formalities regarding preparation of paper books
are dispensed with but Mr. Saha, learned advocate for
the appellants is directed to incorporate all the relevant
documents in the informal paper books.
Liberty to mention after filing of paper books.
The application being CAN No. 2 of 2020
accordingly stands disposed of. Another application
being CAN No. 1 of 2020 has been filed praying for
urgent hearing. In view of the above order the same also
stands disposed of.
Urgent certified photocopy of this order, if applied
for, be supplied as expeditiously as possible.
(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)
