Calcutta High Court (Appellete Side)
(Prahlad Kumar Pradhan vs Ashmanja on 29 August, 2022
3
29.08.2022
Ct. No. 32
rrc
FAT 181 of 2022
with
CAN 1 of 2022
with
CAN 2 of 2022
(Prahlad Kumar Pradhan Vs. Ashmanja
Chowdhury & Anr.)
Mr. Rabindra Nath Bag
Mr. Rohan Raj
..... For the appellant
Mr. Snehasis Jana
Mr. Sukanta Das
..... For the respondent no. 2
The present appeal has been preferred challenging
the judgment and decree dated 20th April, 2022 and 4th
May, 2022 respectively passed by learned Civil Judge
(Senior Division), Ghatal, Paschim Medinipur in Title Suit
No. 46 of 2007.
In connection with the aforesaid appeal, an
application under Section 5 of the Limitation Act being
CAN No. 2 of 2022 has been filed.
Records would reveal that despite service, none
appeared for the respondents on 17th August, 2022 when
the instant appeal and the connected applications came
up for hearing.
As such, to go give a further opportunity to the
respondents to appear in the matter, the hearing of the
aforesaid applications were adjourned and we directed
the aforesaid applications to appear under the heading
'For Orders' in the daily supplementary list of this Court
today (i.e. on 29th August, 2022.)
Today, Mr. Bag, learned advocate appearing in
support of the aforesaid applications, files an affidavit-of-
service. Let such affidavit-of-service be kept on record.
We have heard Mr. Bag and Mr. Jana, learned
advocate appearing for the respondent no. 2 in this
matter.
We find from the report of the Additional Stamp
Reporter dated 11th August 2022 that there is a delay of
two days in filing the aforesaid appeal.
We have considered the averments made in the
application. We are satisfied with the explanation
provided by the appellant and condone the delay in filing
the aforesaid appeal.
The application being CAN 2 of 2022 is, accordingly,
allowed.
CAN 1 of 2022
This application has been filed, inter alia, praying for
stay of operation of the judgment and decree as aforesaid.
Mr. Bag learned advocate appearing in support of the
application being CAN 1 of 2022 submits that
subsequent to passing of the preliminary decree in the
aforesaid suit, a Commissioner of Partition has already
been appointed by order no.134 dated 21st June, 2022
and commission proceedings are going on. He submits as
the Preliminary decree is under challenge and pending
disposal of this appeal if the final decree is passed, the
appellant would be prejudiced. He submits that unless
an order is passed staying the operation of the judgment
and decree, as aforesaid, his client would suffer
irreparable loss injury and prejudice.
Mr. Jana, learned advocate appearing for the
respondent no. 2 opposes such prayer. He submits that
since Commissioner of Partition has already been
appointed and commission proceedings are going on,
balance of convenience lies in favour of the parties in
permitting such proceedings to be completed.
We have heard the learned advocates appearing for
the parties.
We have taken into consideration the submissions
made by the respective advocates representing the parties
and the averments on record. We are of the view that
since the Commissioner of partition has been appointed,
the commission proceedings may be completed, however,
no final decree shall be passed till the disposal of the
present appeal. The aforesaid direction is being passed to
avoid multiplicity of judicial proceeding.
With the aforesaid directions, we expedite the hearing
of the appeal and the application being CAN 1 of 2022
stands disposed of.
Since Mr. Jana, learned advocate has entered
appearance on behalf the respondent no. 2, service of
notice of appeal on the said respondent is dispensed
with.
The appellant is directed to put in requisites for
effecting service of notice of appeal upon the other
respondent within two weeks from date.
Lower Court Records be called for through Special
Messenger at the cost of the appellant. 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 advocate 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 for the respondents.
All formalities regarding preparation of paper books
are dispensed with but Mr. Bag, 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 book
(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)
