Calcutta High Court (Appellete Side)
Ar Sri Pravash Sardar & Ors vs Prabin Kumar Sadhu & Ors on 26 August, 2022
31 26.8.2022 FA 48 of 2021
Ct-08
with
I.A No. CAN 1 of 2018 (Old CAN No. 1211 of 2018)
CAN 2 of 2022
CAN 3 of 2022
ar Sri Pravash Sardar & Ors.
Vs.
Prabin Kumar Sadhu & Ors.
Mr. Sourav Mukherjee
Ms. Aruna Datta
Mr. Kajshik Chowdhury
.... For the Appellants
Mr. Arun Kumar Maity
Mr. Rishiraj R. Mohanty
Ms. Diya Bain
.... For the Respondent no. 1/Plaintiff
Re: CAN 2 of 2022
CAN 2 of 2022 is a duplication of CAN 3 of
2022, except certain changes in the prayer
portion of CAN 2 of 2022.
On the prayer of the learned counsel
appearing for the applicants, CAN 2 of 2022
stands dismissed as withdrawn, as we propose to
decide the application for substitution in CAN 3
of 2022.
Re: CAN 3 of 2022 (Substitution)
CAN 3 of 2022 is an application for
substitution filed consequent upon the death of
the appellant no. 2(c), namely, Balaram Sardar,
who died intestate on 24th August, 2018 leaving
behind him the heirs and legal representatives,
as described in paragraph 7 of the said
application.
Learned counsel appearing for the appellants
submits that due to financial stringency and
hardship the appellants could not file the
application for substitution within the statutory
period.
We accept the explanation offered for not
filing the application for substitution in time.
After hearing the learned counsel appearing
for the parties and considering the fact that the
heirs and legal representatives of the deceased
appellant no. 2(c) are major and sui juris and the
right to sue and be sued survives in favour of
such heirs mentioned in this application, we
allow the application for substitution after
setting aside abatement and condoning the delay
and direct substitution of heirs and legal
representatives of deceased appellant no. 2(c), as
described in the said application in stead of and
in place of the deceased appellant no. 2(c) in the
appeal.
The application being CAN 3 of 2022 is thus
allowed without any order as to costs.
Office shall carry out the necessary
amendments in the cause title of the
Memorandum of appeal, as indicated
hereinbefore within two weeks from date.
Re: CAN 1 of 2018 (Old CAN No. 1211 of 2018)
We do not find from the operative part of the
judgment, by which the suit was decreed, that
any direction was passed directing the plaintiff to
pay the balance consideration amount. We have
been informed that an execution proceeding
initiated is kept pending. However, having
regard to the fact as aforesaid the decree under
challenge shall remain stayed till the disposal of
the appeal.
The appeal is otherwise ready as regards
service as the decree holder is representing by
his learned advocate.
The appellants are given liberty to prepare
and file requisite number of informal paper
books out of court - printed, typewritten or
cyclostyled, as the case may be - within a period
of four weeks from date and serve the paper book
upon the respondents.
Let the appeal appear in the list in the
monthly combined list of November, 2022.
CAN 1211 of 2018 is accordingly disposed of
without any order as to costs.
(Siddhartha Roy Chowdhury,J.) (Soumen Sen, J.)
