Gauhati High Court
On The Death Of Late Tapeswar Kumar His ... vs Sri Thaneswar Kumar on 22 February, 2019
Page No.# 1/6
GAHC010095982018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil) 1611/2018
1:ON THE DEATH OF LATE TAPESWAR KUMAR HIS LEGAL HEIRS SRI
MAKAN KUMAR AND 7 ORS
W/O LATE TAPESWAR KUMAR, R/O VILL. KUMARPARA, MOUZA DANHI,
P.S. MANGALDAI, DIST. DARRANG, ASSAM, PIN 784125
2: PRANJAL KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
3: KALPANA KUMAR
D/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
4: SRI BONO KUMAR @ SRI BANDANA KUMAR
D/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
5: SRI ALPANA KUMAR
D/O LATE TAPESWAR KUMAR
Page No.# 2/6
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
6: SRI KAMAL KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
7: SRI ARUN KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 784125
8: SRI AMAL KUMAR
S/O LATE TAPESWAR KUMAR
R/O VILL. KUMARPARA
MOUZA DANHI
P.S. MANGALDAI
DIST. DARRANG
ASSAM
PIN 78412
VERSUS
1:SRI THANESWAR KUMAR
S/O LATE TANKESWAR KUKMAR @ TANGALU, R/O KUMARPARA, MOUZA
DANHI, P.S. MANGALDAI, DIST. DARRANG, ASSAM, PIN 784125
Advocate for the Petitioner : MR. P UPADHYAY
Advocate for the Respondent : MR. T ISLAM
Page No.# 3/6 Linked Case : RSA 129/2018 1:ON THE DEATH OF LATE TAPESWAR KUMAR HIS LEGAL HEIRS SRI MAKAN KUMAR AND 7 ORS W/O LATE TAPESWAR KUMAR R/O VILL. KUMARPARA MOUZA DANHI P.S. MANGALDAI DIST. DARRANG ASSAM PIN 784125 2: PRANJAL KUMAR S/O LATE TAPESWAR KUMAR R/O VILL. KUMARPARA MOUZA DANHI P.S. MANGALDAI DIST. DARRANG ASSAM PIN 784125 3: KALPANA KUMAR D/O LATE TAPESWAR KUMAR R/O VILL. KUMARPARA MOUZA DANHI P.S. MANGALDAI DIST. DARRANG ASSAM PIN 784125 4: SRI BONO KUMAR @ SRI BANDANA KUMAR D/O LATE TAPESWAR KUMAR R/O VILL. KUMARPARA MOUZA DANHI P.S. MANGALDAI DIST. DARRANG ASSAM PIN 784125 5: SRI ALPANA KUMAR D/O LATE TAPESWAR KUMAR R/O VILL. KUMARPARA MOUZA DANHI P.S. MANGALDAI DIST. DARRANG ASSAM PIN 784125 Page No.# 4/6 6: SRI KAMAL KUMAR S/O LATE TAPESWAR KUMAR R/O VILL. KUMARPARA MOUZA DANHI P.S. MANGALDAI DIST. DARRANG ASSAM PIN 784125 7: SRI ARUN KUMAR S/O LATE TAPESWAR KUMAR R/O VILL. KUMARPARA MOUZA DANHI P.S. MANGALDAI DIST. DARRANG ASSAM PIN 784125 8: SRI AMAL KUMAR S/O LATE TAPESWAR KUMAR R/O VILL. KUMARPARA MOUZA DANHI P.S. MANGALDAI DIST. DARRANG ASSAM PIN 784125 VERSUS 1:SRI THANESWAR KUMAR S/O LATE TANKESWAR KUKMAR @ TANGALU R/O KUMARPARA MOUZA DANHI P.S. MANGALDAI DIST. DARRANG ASSAM PIN 784125 Advocate for the Petitioner : MR. P UPADHYAY Advocate for the Respondent : MR. T ISLAM :: BEFORE ::
Page No.# 5/6 HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
-O R D E R-
22.02.2019 Heard Mr. P Upadhyay, learned counsel for the petitioner and Mr. T Islam, learned counsel for the sole respondent.
This is an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 469 days in preferring the connected second appeal arising out of the judgment and decree dated 05.10.2016 passed by the learned Civil Judge, Darrang at Mangaldoi in Title Appeal No. 3/2008.
It is the contention of Mr. Upadhyay that the suit which was filed by the present respondent as the plaintiff, was dismissed subsequent to which Title Appeal No. 3/2008 was filed by the present respondent as the appellant. In the said appeal the present respondent filed an application under Order XXIII Rule 1 of the CPC for withdrawal of the suit itself owing to formal defect. The said application was rejected whereafter a revision application was preferred before this court and the same was dismissed in presence of the counsel of the present petitioners. After the said dismissal the first appellate court issued notice to the present petitioners and on the basis of the process server's report dated 20.05.2016 the said appeal was disposed of ex-parte thereby reversing the finding of the trial court. The suit was for partition and precept having issued in the consequential execution case Lat Mondal visited the suit land and only then as per the contention of Mr. Upadhyay the present petitioners came to know about the judgment passed by the first appellate court. Thereafter, this second appeal is preferred and while preferring the same, the delay of 469 days took place. The explanation for condonation of the said delay is specific that the present petitioners were not served with any notices from the first appellate court. The said contention is opposed by Mr. Islam. On the other hand, on a specific query the process server's report was produced by Mr. Upadhyay which shows that the respondent no. 7 Arun Kumar accepted notices on behalf of all the respondents by putting his signature. On perusal of the said process server's report which is an uncertified copy it is seen that the signature of Arun Chandra Kumar appears on the report of the process server. However, the same is denied by Mr. Upadhyay on the ground that the said Page No.# 6/6 respondent no. 7 was suffering serious illness and the acceptance of notice by him is not at all believable. In order to establish the said fact of acceptance of notice, Mr. Islam sought for producing the certified copy of the said process server's report for which he sought for 1 week's time. Time is granted. List this matter for orders on 08.03.2019.
JUDGE Comparing Assistant