(Sunil Kumar Agarwal vs Mahesh
2022 Latest Caselaw 5364 Cal

    10
12.08.2022
Ct. No. 32
   rrc




                               FAT 318 of 2019
                                    with
                IA No. CAN 1 of 2019 (Old No. CAN 6713 of 2019)
                             with
                IA No. CAN 2 of 2019 (Old No. CAN 6715 of 2019)
                             with
                IA No. CAN 3 of 2019 (Old No. CAN 6739 of 2019)


                       (Sunil Kumar Agarwal Vs. Mahesh
                               Kumar Maskara)



                Mr. Partha Sarathi Bhattacharyya, Sr. Adv.
                Mr. Raju Bhattacharyya
                                         ...... For the appellant

                Mr. Avinash Kankani
                Mr. Anurag Bagarla
                                         ..... For the respondent

The present appeal has been filed challenging a

judgment and decree dated 18th January, 2019 passed

by the learned Civil Judge, Senior Division, Islampur,

Uttar Dinajpur.

In connection with the aforesaid appeal, an

application being CAN 2 of 2019 (Old No. CAN 6715 of

2019 has been filed primarily praying for leave to permit

the applicant to present Memorandum of Appeal in his

capacity as a legal heirs and representative of Mahabir

Prasad Agarwal, the defendant in the suit.

Mr. Bhattacharyya learned senior advocate appearing

in support of the application, submits that subsequent to

passing of the decree dated 18th January, 2019, the sole

defendant i.e. Mahabir Prosad Agarwal, died on 15th

June, 2019. Prior to his death, the aforesaid defendant,

during his lifetime had made and published a Will on

30th November, 2017 and had appointed Sunil Kumar

Agarwal, the applicant herein, as his executor. The

applicant having survived the defendant, is entitled to

represent the estate of the deceased. Accordingly, the

present application has been filed for leave to prefer the

appeal.

Mr. Kankani, learned advocate through his junior Mr.

Anrag Bagarla enters appearance on behalf of the

plaintiff/respondent.

Having considered the aforesaid application,

disclosure of the will and having considered that no other

natural heir of the original defendant having come

forward, we grant leave to Sunil Kumar Agarwal as

executor to the estate of Mahabir Prosad Agarwal,

who is the son of Late Ashok Kumar Agarwal and

grandson of deceased Mahabir Prosad Agarwal, to prefer

the Appeal.

The application being CAN No. 2 of 2019 (Old No.

CAN 6715 of 2019) is, accordingly, disposed of.

The office is directed to effect necessary corrections

in the Memorandum of Appeal.

In connection with the aforesaid appeal, an

application being CAN No. 1 of 2019 (Old No. CAN 6713

of 2019) under Section 5 of the Limitation Act has also

been filed.

We find from the report of the Additional Stamp

Reporter dated 16th July, 2019 that there is a delay of 30

days in presenting the aforesaid appeal.

We have heard Mr. Kankani.

We have considered the statements made in the

aforesaid application. We find reasons for delay has been

sufficiently explained, as such, we allow the application

under Section 5 of the Limitation Act.

The application being CAN 1 of 2019 (Old No. CAN

6713 of 2019), accordingly, stands disposed of.

Another application being CAN 3 of 2019 (Old No.

CAN 6739 of 2019) has been filed, inter alia, in effect

praying for stay of operation of the judgment and decree

impugned.

Records reveal that the respondent/plaintiff has filed

the instant suit, inter alia, praying for recovery of

possession of the suit property comprising of one two-

storied concrete construction having one room on the

ground floor and another concrete room on the first floor

covered with tin-shed construction and an adjoining

courtyard. The property is situated in Mouza - Dalkhola.

The total area of land is about 7 Decimals. The original

defendant, despite setting up a defense of adverse

possession, ultimately could not succeed.

Mr Kankani opposes the application for stay of the

judgement and says that the suit property is a rice mill

and is a valuable property, his client should not be

denied the fruits of the decree which his client has been

able to secure after more than a decade. His client has

already filed an execution application, which is pending.

Further the will is yet to be probated. Probate petition

has till date not been filed. If ultimately the appellant, is

unable to obtain probate, the appeal would fail, however

in the process the respondent/plaintiff shall be denied its

right to get the decree executed.

At this stage Mr. Bhattacharya on instructions

submits that expeditious steps would be taken by the

appellant to file the probate proceedings.

We have heard the parties we are of the view that

unless the execution application, which is pending before

the Civil Judge Senior Division, Islampur, Uttar Dinajpur

is stayed the appellant shall be immensely prejudiced as

he may be evicted in execution of the decree. However,

taking into consideration the nature of challenge, at this

stage we do not propose to direct the appellant to pay

occupational charges.

The appellant, however, is yet to obtain probate.

Further considering the fact that the respondent may not

have any control over the outcome of the proposed

probate proceedings and would be denied the fruits the

decree, we consider it appropriate and direct the

appellant to put in a security of Rs 15,00,000/. The same

shall be deposited by way of a bank draft drawn in favour

of the Registrar General, High Court, Calcutta.

There shall, however, be an unconditional stay of the

execution case pending before the Civil Judge Senior

Division, Islampur, Uttar Dinajpur for a period of six

weeks from date.

Upon depositing the entire amount of Rs.15,00,000/-

with the Registrar General, High Court, within six weeks

from date, the stay so granted by this order, shall

continue till disposal of the appeal.

In the event the aforesaid amount is deposited, the

Registrar General shall invest the said amount in a

suitable interest-bearing fixed deposit with any

nationalized bank of his/her choice and such deposit will

be kept renewed until disposal of the appeal.

In the event the aforesaid amount of Rs.15,00,000/-

is not deposited within the aforesaid period, the interim

order of stay shall stand vacated, and the

plaintiff/respondent shall be entitled to execute the

decree.

The application for stay being CAN 3 of 2019 (Old

No. CAN 6739 of 2019) stands disposed of.

Let the hearing of this appeal be expedited.

As Mr. Kankani, learned advocate through his junior

Mr. Anurag Bagarla advocate, has entered appearance for

the respondent, notice of appeal on the said respondent is

dispensed with.

Lower Court Records be called for through Special

Messenger at the cost of the appellant. Such costs shall be

deposited within seven days 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 appellant.

The appellant is 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 respondent.

All formalities regarding preparation of paper books are

dispensed with but Mr. Raju Bhattacharyya, learned

advocate for the appellant is directed to incorporate all the

relevant documents in the informal paper books.

Liberty to mention after filing of paper books.

(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)