Sri Sujit Ghosh & Anr vs Sri Pijush Kanti Ghosh & Ors
2022 Latest Caselaw 5905 Cal

                              FAT 597 of 2019
                                   with
25.08.22     IA No. CAN 1 of 2019 (Old No. CAN 12620 of 2019)
 Sl-07                              and
 Ct.32       IA No. CAN 2 of 2019 (Old No. CAN 12621 of 2019)
 (S.R.)
                            Sri Sujit Ghosh & Anr.
                                       v.
                        Sri Pijush Kanti Ghosh & Ors.

           Mr. Chittapriya Ghosh
           Mr. Somesh Kumar Ghosh
           Ms. Priyanka Saha
           Mr. Komal Singh                        ... for the appellants.

           Mr. Gopal Chandra Ghosh
           Ms. Sanchita Dey
           Mr. J. Kaunda
           Mr. Rajkrishna Mondal
                                 ... for the respondent nos.1 to 6.

The present appeal has been filed challenging the

judgment and decree dated 24th September, 2018 passed

by the Learned Civil Judge (Senior Division), Arambagh,

Hooghly in Title Suit No.18 of 2012.

Mr. Ghosh, learned advocate appearing in support

of the aforesaid appeal and application submits that the

decree passed by the Learned Court incorrectly on

account of a typographical error records that the suit is

valued at Rs.20/-. According to him, the suit is valued at

Rs.20,000,00/-. Mr. Ghosh appearing for the respondent

nos.1 to 6 concurs the aforesaid submission made by Mr.

Ghosh representing the appellants. Accordingly, we take

up the applications for hearing.

In Re: IA No. CAN 2 of 2019 (Old No. CAN 12621 of 2019)

In connection with the aforesaid appeal an

application under Section 5 of the Limitation Act being

CAN 2 of 2019 (Old No. CAN 12621 of 2019) has been

filed. From the report of the Additional Stamp Reporter

dated 12th February, 2020 it would appear that there is a

delay of 297 days.

We have considered the averments made in the

application and submissions of the parties. We are

satisfied with the explanation given by the appellants in

the aforesaid application for condonation of delay and we,

accordingly, condone the delay in filing the aforesaid

appeal.

The application for condonation of delay being CAN

2 of 2019 (Old No. CAN 12621 of 2019) is, accordingly,

disposed of.

In re: IA No. CAN 1 of 2019 (Old No. CAN 12620 of

2019)

In connection with the aforesaid appeal an

application for stay has also been filed which has been

registered as CAN 1 of 2019 (Old No. CAN 12620 of 2019).

Mr. Ghosh, learned advocate appearing for the

respondents does not oppose the same.

Mr. Ghosh submits that the present appeal has been

filed challenging a preliminary decree passed in a

partition suit. Unless the aforesaid judgment and decree

is stayed the defendants/appellants shall suffer

irreparable loss and injury as the instant appeal would

become infructuous in the event final decree is passed.

Mr. Ghosh enters appearance in the aforesaid

matter on behalf of the plaintiffs/respondent nos.1 to 6.

He submits that an application for appointment of

commissioner of partition has already been filed and the

same is likely to be taken up for consideration by the

Learned Court Below. He submits that balance of

convenience lies in favour of the parties in permitting the

Trial Court to continue and dispose of the pending

application for appointment of Commissioner of partition.

We have heard the parties. We have considered the

materials of record. We are of the opinion that since an

application has already been filed for appointment of a

commissioner of partition, the Learned Trial Court shall

be at liberty to hear out and dispose of the said

application. In the event, the said application is allowed

and the commissioner of partition is appointed the

commission proceedings shall go on, however, no final

decree shall be passed till disposal of this appeal. The

aforesaid order is being passed to avoid multiplicity of

judicial proceedings.

The application for stay being CAN 1 of 2019 (Old

No. CAN 12620 of 2019) is, accordingly, disposed of.

Let the hearing of the appeal be expedited.

As Mr. Ghosh, learned advocate has entered

appearance on behalf of the respondent nos.1 to 6, the

service of notice of appeal upon the said respondents is

dispensed with.

The appellants are directed to put in the requisites

for service of notice of appeal upon the other respondents

within two weeks from date.

The Lower Court records be called for through

Special Messenger at the cost of the appellants. Such

cost 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 advocate for the appellants.

The appellants are directed to prepare and file

requisite number of informal paper books-printed,

typewritten or cyclostyled, as the case may be out of

Court, within four weeks from the date of service of notice

of arrival of Lower Court Records and shall file the same

after serving a copy thereof upon the learned advocates

appearing for the respondents.

All formalities regarding preparation of paper books

are dispensed with but the learned advocate for the

appellants shall incorporate all relevant documents in the

informal paper books.

Liberty to mention after filing of the paper books.

Since, it appears that there is an error in the decree

passed by the Learned Trial Court as regards the

valuation statement, the office is directed to send down

the original decree to the Learned Court Below for

rectification of the defects upon retaining photo copy of

the same. The appellants are directed to put in

appropriate requisites within a period of two weeks from

date for the aforesaid exercise to be conducted by the

office.

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