Calcutta High Court (Appellete Side)
Peyari Debi Barma & Ors vs Amarnath Basu on 10 October, 2018
Author: Patherya
Bench: Patherya
1
0/2018
D. F.A. 99 of 2001
+
CAN 844 of 2017
+
CAN 846 of 2017
+
CAN 6594 of 2018
Peyari Debi Barma & Ors.
-vs-
Amarnath Basu
Mr. Debasish Roy
Ms. Sujata Mukherjee
Mr. Vinoy Kumar Purohit
... for the appellants.
Mr. Saptangshu Basu
Mr. Somenath Bose
... for the respondent.
CAN 844 of 2017 was filed on 30th January, 2017. In this application all that the applicants sought is that the order dated 8th August, 2008 be recalled and the Ejectment Execution Case No. 43 of 1999 be stayed. By order dated 19th July, 2018 directions were given to file affidavits. On 18th August, 2005 paper books were to be filed within a period of four weeks from the said date, in default the final orders to be passed. Within the said time i.e. four weeks no paper book was filed, and the order dated 8th August, 2008 was dismissed for the said reason. On perusal of CAN 844 of 2017 we find that appellants came to know of the execution initiated against Radha Raman Saha and in fact the decree holder/defendant was successful in vacating the said tenant Radha Raman Saha on 23rd September, 2016. It has been pleaded in the said application that after 23rd September, 2016 the applicant contacted his advocate on 4th October, 2016 and the advocate asked the appellants to meet her after reopening of the Court after the long Puja vacation and on 3rd November, 2016 the Court reopened. Information slips were filed and the records were inspected too. It is then that the applicants came to know that for non-filing of the paper books appeal was dismissed on 8th September, 2008. In fact on 9.9.2008 it was noted "Put up for 2 formal order of dismissal" and therefore the Registrar Administration on 11th September, 2008 passed a formal order for dismissal of the appeal and this we find from the records before us. The applicants applied for the certified copies on 7th November, 2016 and obtained the same on 28th November, 2016 too. Thereafter instructions were given, applications were filed and although the execution case was filed but the same was adjourned from time to time. It has been pleaded in paragraph 22 of this application which is set out hereinbelow :-
"22. That the instant application was drafted, prepared, made ready and filed on January 27, 2017 without any further delay."
This averment is accepted and CAN 844 of 2017 was filed on 30th January, 2017.
On a perusal of the facts of this case we are of the opinion that when the technical approach is pitted against the substantive approach we are inclined to accept the substantive approach and it is only for this reason CAN 844 of 2017 is allowed upon payment of costs of Rs. 2,500/- to the respondent by tomorrow (11.10.2018).
Accordingly the order dated 8th August, 2008 is set aside and F.A. 99 of 2001 is restored on the file.
Accordingly, CAN 844 of 2017 is disposed of.
(Patherya, J.) RE : CAN 846 of 2017 This is an application for substitution of the legal heirs and representatives of the deceased sole respondent after setting aside of abatement on condonation 3 of delay who died intestate on March 20, 2007 leaving behind him surviving the widow, son and a married daughter as legal heirs and representatives.
The explanation offered by the appellants to condone the delay in filing the present application is that that appellants were totally in dark about the factum of death of the respondent. However, subsequently when the summons of the execution case was served upon the appellant no. 1(b), the appellants came to learn about the death of the sole respondent. The appellants thereby filed the present application.
We are satisfied about the explanation offered by the appellants in not filing the present application within the time stipulated under the law of limitation. The application is therefore allowed. The legal heirs and representatives of the deceased sole respondent whose particulars have been set out at paragraph 25 of the application be substituted in place and instead of the deceased sole respondent after setting aside abatement on condonation of delay.
The department is directed to carry out the necessary amendments in the cause-title of the Memorandum of Appeal by 11th October, 2018.
CAN 846 of 2017 is accordingly disposed of. No order as to costs.
Let the appeal be listed for hearing on 12th October, 2018.
(Biswajit Basu, J.) Certified copy of this order, if applied for, be given to the parties on priority basis.
(Patherya, J.) 4 (Biswajit Basu, J.)