Calcutta High Court (Appellete Side)
Sumanta Kumar Dawn vs Somenath Dawn And Others on 13 October, 2023
October 13, 2023
Sl. No.7
Court No.19
s.biswas
CO 3575 of 2023
Sumanta Kumar Dawn
vs.
Somenath Dawn and others
Mr. Biswaroop Bhattacharya
Mr. Arup Nath Bhattacharyya
Ms. Sayani Das
Ms. Sreetama Biswas
... for the petitioner
Mr. Kushal Chatterjee
Mr. Oishik Chatterjee
... for the opposite party nos.1 to 3
The petitioner/one of the defendants in Title
Suit No.19 of 2000 has preferred this revisional
application, being aggrieved by an order dated
August 16, 2023 passed by the learned Civil Judge
(Senior Division) at Sealdah, North 24 Parganas, in
Misc. Case No.20 of 2023.
By the order impugned, the learned Civil Judge
(Senior Division) at Sealdah has granted a limited
stay of the judgment and decree dated May 18, 2023
passed in Title Suit No.19 of 2000 till October 13,
2023.
It is urged by Mr. Bhattacharya, learned
advocate for the petitioner, that the review
application itself is not maintainable. Without
considering the prima facie case, the balance of
convenience and inconvenience and without hearing
the petitioner, the learned court ought not to have
stayed the operation of the judgment and decree.
Reference has been made to pages 54 and 61 of the
revisional application which indicate that the
affidavit of evidence in chief of Smt. Manjushree
Dawn was also filed. Mr. Bhattacharya submits that
evidence of Smt. Manjushree Dawn was recorded on
commission. Mr. Bhattacharya relies on a document
which is Annexure G (page 63) to the revisional
application. The same is a letter written by Smt.
Manjushree Dawn expressing her willingness to
accept the partition.
Mr. Chattrejee, learned advocate for the
opposite parties, disputes such letter.
Mr. Bhattacharya submits that the documents
which were available with the learned court should
have been looked into before the judgment and
decree was stayed.
Mr. Chatterjee, learned advocate for the
opposite party no.2/Smt. Manjushree Dawn,
submits that the final decree was passed upon
recording the consent. The objection with regard to
erroneous recording ought to be raised before the
court which passed the order. Thus, the review
application was filed. The person who gave consent
allegedly another acted on behalf of the plaintiffs in
the partition suit, without any authorization.
The issues which have been raised by both the
learned advocates for the respective parties are to be
decided by the court which passed the judgment and
decree. Whether there was consent or whether the
learned court had recorded the consent wrongly, can
best be decided by the learned trial court itself and
not by this court.
Under such circumstances, this court is of the
view that the application for review along with the
application for stay, should be disposed of within a
month after reopening of the court after the ensuing
puja vacation and should be heard by the learned
court which passed the judgment and decree.
I do not find any reason to interfere with the
order impugned as the learned court has decided to
hear out the parties.
In the meantime, the petitioner is entitled to file
his written objection to the stay application and also
the review application, which shall be adjudicated by
the learned court below, in accordance with law.
The revisional application is thus disposed of.
Urgent Photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance with the requisite formalities.
(Shampa Sarkar, J.)
