Masum Ali Mullick vs Mohsin Ali Mullick & Ors
2023 Latest Caselaw 1071 Cal/2

OD-10&13
                               ORDER SHEET
                     IN THE HIGH COURT AT CALCUTTA
                      Ordinary Original Civil Jurisdiction
                               ORIGINAL SIDE

                           IA NO. GA/17/2023
                             In CS/338/2002

                        MASUM ALI MULLICK
                                 Vs
                      MOHSIN ALI MULLICK & ORS.

                           IA NO. GA/15/2022
                             In CS/338/2002

                        MASUM ALI MULLICK
                                 Vs
                      MOHSIN ALI MULLICK & ORS.


BEFORE:
The Hon'ble JUSTICE SUGATO MAJUMDAR

Date : 26th April, 2023.

Appearance :

Mr. Md. Hossain, Adv.

Mr. N. N. Maity, Adv.

Mr. A. K. Dutta, Adv.

Mr. S. Ghosh, Adv.

Mr. S. Roy, Adv.

Ms. L. Sinha, Adv.

Mr. D. Dutta, Adv.

Mr. A. Roy, Adv.

Mr. I. Sen, Adv.

Mr. S. Medda, Adv.

The Court : GA/15/2022 is filed by the plaintiff for appointment

of Joint Commissioner for partition afresh in place of the previous

Joint Commissioners and to carry out the work of partition by metes

and bounds on the basis of preliminary decree passed on 22nd May,

2009 by the Hon'ble Justice Pranab Kumar Deb.

GA/17/2023 is filed by defendant no.2 praying for recalling

and/or modifying the Order passed on 17th June, 2015 along with a

further prayer to appoint handwriting expert to verify the signature of

plaintiff no.2. GA/17/2023 is taken up first as because the Order

which is there to be recalled in terms of the said application,

contemplated appointment of Joint Commissioner of partition which

are connected with GA/15/2022. The Order was passed on 17th

June, 2015 by a Coordinate Bench of this Court and that Order is

sought to be challenged on 14th February, 2023 after lapse of 8 years.

There is no justification in recalling the Order passed so long ago and

specially when no valid ground is set out in the application itself.

Therefore, the Order dated 17th June, 2015 need not be recalled.

Therefore, GA/17/2023 is stands dismissed.

GA/15/2022 is taken up where prayer is made for appointment

of recorded Lawyers as Joint Commissioner of partition. It is

submitted by learned Counsel for defendant no.2 who also filed a

supplementary affidavit that a Review application is pending before

the Hon'ble Division Bench regarding the preliminary decree.

According to him, Joint Commissioner for Partition should not be

appointed at this stage unless the Review application is disposed of.

It appears that Review application is filed in respect of the

judgment dated 28th February, 2020. Preliminary decree is passed.

Final decree shall be drawn up definitely subject to the outcome of

Review application. For the time being to expedite the suit, it is proper

that the Commissioners of Partition shall be appointed in terms of

prayer (a) of GA/15/2022. The Advocate-on-record for plaintiff and

defendant nos. 3 and 4 shall be appointed as Partition Commissioner

in terms of Order dated 17th June, 2015. Learned Counsel for

defendant no.2 submitted that the Advocate-on-record for defendant

no.2 may also be appointed as a Partition Commissioner.

Accordingly, the Advocate of defendant no.2 shall also be

appointed as the Joint Commissioner of Partition. The Joint

Commissioners of Partition shall proceed with their work and convene

a meeting of the parties within two weeks from date to submit a

scheme of partition in respect of immovable properties and subject to

the Order passed in the Review application.

The Suit will appear in the list on 8th June, 2023 for further

order.

Accordingly, GA/15/2022 is disposed of.

(SUGATO MAJUMDAR, J.)

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