MRIDUL KANTI MAJUMDER Vs. JYOTSNA BAL

JUDGEMENT

(1.) By consent of parties, this appeal is treated as on day's list and is taken up for hearing along with the application for stay.

(2.) This appeal is preferred against an order dated 28th August, 1997 passed on an application filed by the respondents for recalling of an order passed by a learned Judge on 12th February, 1997. It is an admitted position that an application under Clause 13 of the Letters Patent filed at the instance of the appellant was disposed of by an order dated 24th February 1997 by transferring a probate suit being O.S. No. 10 of 1997 which was pending before a learned Judge at Alipore 24-Parganas (South) to this Court.

(3.) After careful examination and on perusal of the order dated 24th February, 1997 passed by the learned trial Judge transferring the Probate suit to this Court in the exercise of the power under clause 13 of the Letters Patent, it appears to us that on that very date the application under clause 13 of the Letters Patent was disposed of by treating the same as on that day's list as no leave to file counter was sought for on behalf of the respondents. Subsequently on the basis of the aforesaid order, the suit being O.S. No. 13 of 1997 stood transferred to this Court. In the month of June, 1997 an application for recalling of the aforesaid order dated 24th February, 1997 was filed at the instance of the respondents on the ground that no authorisation was given to Mr. Amal Kr. Mitra, a learned advocate of this Court at the time the order dated 24th February, 1997 was passed. The learned trial Judge however, asked Sri Mitra whether he had instruction to appear on behalf of the respondents at the time, the transfer order was passed. The answer was in the negative. Relying thereon, the learned trial Judge allowed the application for recalling. Feeling aggrieved by this order, the present appeal has been preferred at the instance of the appellant.