Namita Maji vs Gopal Maji @ Gopal Chandra Maji
2023 Latest Caselaw 4122 Cal

5.7.2023
   158
Ct. no. 652
   sb
                                SA 157 of 2015
                                     With
                                CAN 2 of 2022


                                Namita Maji
                                     Vs.
                               Gopal Maji @ Gopal Chandra Maji


                   Mr. Rajen Dutta
                   Ms. Krishna Yadav           ...for the Appellant

                   Mr. Nilanjan Bhattacharjee
                   Mr. Abhilash Chatterjee ..for the respondent

Re: CAN 2 of 2022

Affidavit of service filed by the appellant is taken

on record.

Being aggrieved and dissatisfied with the judgment

and order dated 26th February, 2015, the present appeal

has been preferred. The first appellate court has reversed

the judgement and decree dated 25th November, 2010.

The present second appeal came up for hearing on 4th

November, 2015 under Order XLI rule 11 before the

Division Bench of this court and their Lordship was

pleased to admit the said second appeal and directed to

issue notice upon the respondent and further pleased to

call for the trial court record. Accordingly, notice was

duly served upon the respondent.

It is submitted on behalf of the appellant that their

advocate was engaged in a case at Andhra Pradesh from

4.11.2019 to 6.12.2019. After reaching Kolkata, learned

advocate enquired about the case and found that the

appeal had already been dismissed on 11.11.2019. On

11.12.2019, he filed a petition for restoration and

thereafter, this court was pleased to restore the appeal

on 8.3.2022.

During pendency of the restoration application, the

respondent sold the property in question to Palash

Debnath on 25.10.2021. The petitioner submits that said

new purchaser of the property is required to be added as

a party.

Learned counsel for the respondent submits that

admittedly the appeal was dismissed on 11.11.2019 and

the sale in favour of the intervenor took place on

25.10.2021. Accordingly, when the sale took place, the

appeal was not alive. He further raised objection on the

ground that the copy of the decree has not been annexed

with the paper book and as such it is not

understandable whether the property, which was sold in

favour of the intervenor is the subject matter of the

present dispute or not. In reply, learned counsel for the

appellant submits that said appeal was dismissed on

11.11.2019 but the prayer for restoration was made on

11.12.2019 and the notice was issued on 1.2.2022 upon

the respondent and he further contended that the

property which was sold to the intervenor, is the subject

matter of the present appeal.

It is well settled if a party can show a fair

semblance of title or interest, he can certainly file an

application for impleadment. In a suit or appeal where

cancellation of sale is sought for, the person who has

purchased the property and whose rights are likely to be

affected pursuant to the judgment, is a necessary party

and he has to be added.

Having considered the facts and circumstances of

the case and in view of subsequent transfer, the prayer

made by the appellant is allowed.

Department is directed to add Mr. Palash Debnath

as described in the cause title as added respondent after

making necessary correction.

CAN 2 of 2022 is accordingly disposed of.

The appellant is directed to serve the

memorandum of appeal along with notice upon the

added respondent by speed post with acknowledgment

due and file affidavit of service on the returnable date.

Let the matter appear in the Monthly list of

September, 2023.

(Ajoy Kumar Mukherjee, J.)