Padma Lochan Bag vs Ashutosh Maity

P.N. Mookerjee and S.K. Chakravarti, JJ.—This Rule was obtained against an order of the learned Judge dismissing the instant suit for partition for default, even though there was already an order recording that the suit had abated, and against the said order recording abatement, a Misc. Appeal is pending in this Court.

We do not think that, in the above circumstances, when the above order of abatement is still in force although subjudice, the Court will have any jurisdiction of proceeding further with the suit or dismissing it for default.

In the above view, we would make this Rule absolute, set aside the order complained of in this Rule, having or relegating the parties to the position as if the said order had never been made.

We would, however, in the circumstances of this case and having regard to the conduct of the Plaintiffs-Petitioners direct them to pay to the contesting opposite parties, the costs of this Rule, hearing fee being assessed at two gold mohurs.