Smt. Nandita Das & Others vs Sri Kalyan Kumar Das
2023 Latest Caselaw 1098 Cal

09.02.2023
  rpan/04


                                   FAT 89 of 2016
                                            +
                    IA No.: CAN 1 of 2016 [Old No.: CAN No.1989 of 2016]
                                            +
                    IA No.: CAN 2 of 2016 [Old No.: CAN No.1998 of 2016]
                                             +
                    IA No.: CAN 3 of 2016 [Old No.: CAN No.5432 of 2016]
                              Smt. Nandita Das & Others
                                          - Versus -
                                 Sri Kalyan Kumar Das

                          Mr. Rabindra Narayan Dutta,
                          Mr. Sibasis Ghosh,
                          Mr. Hare Krishna Halder,
                          Mr. Koushik Bhattacharyya,
                          Mr. Arkaday Mukherjee
                                    ... for the Applicants/Appellants.
                          Mr. Krishna Das Poddar,
                          Mr. Gopal Krishna Maiti
                                   ... for the Respondent.

Affidavit of service filed on behalf of the

appellants/applicants be kept on record.

IA No.: CAN 3 of 2016 [Old No.: CAN No.5432 of 2016] [Leave to appeal]

This application has been filed praying for leave

to appeal.

Mr. Dutta, learned advocate representing the

appellants/applicants submits that after passing of the

impugned judgment and decree on 4 th August, 2015

the plaintiff died intestate on 20th August, 2015 leaving

behind him the legal heirs as detailed in paragraph 5

of the application.

Upon hearing the learned advocates appearing

for the respective parties and considering the materials

on record, leave is granted to the

applicants/appellants, being the legal heirs of the

original plaintiff , to prefer this appeal.

The application, being IA No.: CAN 3 of 2016

[Old No.: CAN No.5432 of 2016], is accordingly

disposed of.

IA No.: CAN 1 of 2016 [Old No.: CAN No.1989 of 2016] [Sec. 5]

Upon hearing the learned advocates and

considering the averments made in the application, we

are satisfied with the explanation given towards the

delay in preferring the appeal.

Accordingly, the delay in preferring the present

appeal is condoned and the application, being IA No.:

CAN 1 of 2016 [Old No.: CAN No.1989 of 2016] is

disposed of.

IA No.: CAN 2 of 2016 [Old No.: CAN No.1998 of 2016] [Stay]

This is an application praying for stay and/or

injunction.

Mr. Dutta submits that this appeal is arising out

of a partition suit and the said suit has been

dismissed. The respondent is now going to change the

nature and character of the suit property. They are

also taking steps to create third party interest in the

suit property. So an appropriate order is required to

be passed.

Mr. Poddar, learned advocate appearing for the

sole respondent disputes and denies such contention.

Heard the learned advocates. Perused the

materials on record.

On such hearing and perusal we are of the

opinion that the appellants/applicants has raised

some substantial questions of law and facts which

require decision of merits and if the interim order, as

sought for, is not granted, they will suffer substantial

loss.

In view thereof, the parties are directed to

maintain status quo with regard to the nature,

character and possession of the suit property as on

date till the disposal of the appeal and they shall not

create any third party interest in any way and/or

manner whatsoever in the suit property till disposal of

the appeal.

The stay application, being IA No.: CAN 2 of

2016 [Old No.: CAN No.1998 of 2016] is, thus,

disposed of.

Let the hearing of the appeal be expedited.

As Mr. Gopal Krishna Maiti, learned advocate,

has entered appearance on behalf of the sole

respondent, service of notice of appeal upon him is

dispensed with.

Lower court records be called for through Special

Messenger at the cost of the appellants. Such cost

shall be deposited by appellants within two weeks.

Immediately, after arrival of 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 advocates appearing for the

appellants and the sole respondent.

The appellants are directed to prepare 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 copy thereof upon the learned advocate

appearing for the sole respondent.

All formalities regarding preparation of paper

books are dispensed with but the learned advocate for

the appellants are directed to incorporate all the

relevant documents in the informal paper books.

Liberty to mention.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties, upon

compliance of all requisite formalities.

(Partha Sarathi Chatterjee, J.)(Tapabrata Chakraborty, J.)