Jagadish Chandra Mishra vs Smt. Bishnupriya Mishra & Ors
2022 Latest Caselaw 3058 Cal

31    06.06.
 AG   2022
M/R
KB                                C.O. 1148 of 2022
Ct                                      With
07                                  CAN 1 of 2022

                              Jagadish Chandra Mishra
                                          Vs
                           Smt. Bishnupriya Mishra & Ors.

               Mr. Tanmoy Mukherjee,
               Mr. Kallol Kumar Maity.
                                      ... For the petitioner.

The appellate decision passed in Misc. Appeal

No.09 of 2017 of learned Civil Judge (Senior Division) 1 st

Court, Paschim Midnapore, setting aside the order

passed in Misc. Case No. 04 of 2005 is subject of

challenge in this revisional application.

Mr. Tanmoy Mukherjee, learned advocate for the

petitioner submits that First Lower Appellate Court has

not properly gone into the points raised in the appeal,

and the findings reached by the Trial Court could not be

properly addressed by the First Lower Appellate Court,

resulting in serious prejudice caused to the petitioner.

It is contended by the learned advocate for the

petitioner that the compromise decree was challenged

filing the referred Misc. case for the fraud being

committed together with other points mentioned

therein.

It is contended by Mr. Mukehrjee that an attempt

was there to bring in some non suited property, over

which parties had no pre-existing right into the

hotchpotch of partition, and the compromise decree

having purported to create right or title in the plaintiff

for the first time, not being a declaration of pre-existing

right, would be contrary to law as the non suited

property, over which the plaintiff had no pre-existing

right, cannot be subject of partition without the

required registration.

Reliance is placed on a decision reported in

(1995) 5 Supreme Court Cases 709 delivered in the

case of Bhoop Singh -Vs- Ram Singh Major and

Others.

An arguable point is this raised, which needs to

be addressed touching upon the merits of the case.

In the meantime, let there be an order directing

stay of operation of the impugned appellate judgment

and order referred hereinabove till the end of July 2022

or until further order, whichever is earlier.

Petitioner is directed to serve the copy of the

application upon the opposite parties and their learned

advocates appearing in the Court below, by speed post

with A/D, and furnish affidavit of service on the next

returnable date.

Matter to appear in the list under the heading

'Hearing' in the second week of July, 2022.

CAN 1 of 2022

CAN application being CAN 1 of 2022 praying for

condonation of delay, under Section 5 of the Limitation

Act, stands dismissed by reason of the prayer for

withdrawal being made by Mr. Tanmoy Mukherjee,

learned advocate for the petitioner.

(Subhasis Dasgupta, J)