Subodh Kumar Ghosh & Others vs Anil Ghosh & Others

Jyotirmay Bhattacharya, J. :- The instant first appeal is directed against a preliminary decree passed by the learned Trial Judge in a partition suit, at the instance of the defendant nos. 1, 3, 6 and 8/appellants.

In connection with this appeal, an application for appropriate order was filed by the appellants. While the said application was taken up for consideration, we are informed by Mr. Chatterjee, learned senior advocate appearing for the appellants that one of the defendants/respondents viz. Smt. Kanak Sarkar died during the pendency of the suit on 22nd December, 2000. We are also informed by him that no step was taken for substituting the legal heirs of the said deceased-defendant in the suit.

We are further informed by Mr. Ghosal, learned advocate appearing for the respondent nos. 3(a) to 3(f) that another defendant being defendant no. 2 viz. Kartick Jhuri also died during the pendency of the suit on 25th May, 2003 and no step for effecting substitution of his legal heirs was taken by the plaintiffs in the said suit. The suit was instituted sometime in 1999. Hearing of the said suit was concluded on 16th November, 2007 and the preliminary decree was passed in the said suit on 27th November, 2007.

Thus, we find that the suit was decided by the learned Trial Judge against two dead person who were admittedly added as defendants in the said suit as the co-sharers of the plaintiffs. Since the preliminary decree was passed against some dead person, the decree which was so passed by the learned Trial Judge, became ineffective decree. As a matter of fact, the said decree is a nullity.

In an identical situation, the Division Bench of this Hon''ble Court in the case of Kanailal Manna & Ors. v. Bhabataran Santra & Ors. reported in AIR 1970 CAL, page 99 held that in such circumstances, the appeal cannot be decided on merit.

It was further held therein that the only course which can be adopted in such circumstances, is to set aside the ineffective decree and send the suit back to the learned Court by giving an opportunity to the plaintiffs to regularise, the suit by taking appropriate steps therein and in case the suit is ultimately regularised, the suit will be decided by the learned Trial Judge afresh in accordance with law.

Thus, following the principle as laid down by the Division Bench of this Hon''ble Court in the said decision, we set aside the impugned preliminary decree and send the suit back to the learned Court and give an opportunity to the plaintiffs to regularise the said suit by taking appropriate steps therein and in case the plaintiffs take such step before the learned Trial Judge within a month from the date of receipt of the lower court records by the learned Trial Judge, the learned Trial Judge will consider the prayer for regularising the said appeal of the plaintiffs and will decide the said suit on merit, if occasion so arises for disposing of the suit on merit.

The appeal is thus, disposed of with the above observations.

Let the lower court records be sent down to the Court below immediately along with a copy of this order for communication of this order to the learned Court below.

Both the appeal and application are disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.