K SAROJA NAKSHTRI Vs. SADASUKH KABRA AND CO

JUDGEMENT

(1.) Special leave granted.

(2.) Heard learned counsel for the parties. It appears that the effect of the order dated 23/09/1993 passed by a division bench comprising the learned chief justice and Mr Justice N. K. Batabyal is to nullify the earlier order passed by a division bench comprising the acting chief justice (as she then was) and Mr Justice S. N. Mullick, dated 21/06/1993. We think that the grievance of the counsel for the petitioner is right that the division bench headed by the learned chief justice could not have nullified the order of the earlier division bench even if it is assumed for the sake of argument that it had the effect of the impinging on the order of 8/04/1993. In case of the kind, the proper course was to move an application for review before the bench which passed the order of 21/06/1993 or before anyone of the Judges available if the rules of the High court permitted the matter be placed before a Single Judge, where the other learned Judge had since retired. Be that as it may, theapplication ought to have been placed before a bench of which Mr Justice mullick was a party. It is not disputed before us that according to the rules of the Calcutta High court if one of the judges retired the review application is heard by a Single Judge who is still on the bench. We, therefore, set aside the impugned order dated 23/09/1993 and remit the matter to the High court to be considered as review application against the order of 21/06/1993. We would like the High court to dispose of this review application at an early date as execution proceedings are in progress. We think it would be in order if the review application is disposed of within a month's time without raising the question of delay since the petition has already been filed. The appeal will stand disposed of accordingly with no order as to costs.