SK KAMIZ Vs. NAMUDIN BEWA

JUDGEMENT

(1.) This revisional application under section 115 of the Code of Civil Procedure is filed by defendant No. 56 in a suit far partition.

(2.) Title Suit No. 155 of 1969 was instituted by the plaintiffs/opposite parties Nos. 2 to 6 and the predecessors-in-interest of the opposite parties Nos. 1 to 7 in the court of the learned Subordinate Judge at Malda. By judgment and decree dated September 17,1970 the said Title Suit No: 155 of 1969 was decreed in preliminary .form declaring the said plaintiffs' total share of 2 annas, 11 gandas and 2 kranti in the prpperty-in-suit, the defendant Nos. 17,18,55 and 56 filed an application under Order 9, Rule 13 of the Code of Civil Procedure for recalling of the decree dated September 17, 1970 and the said proceedings was registered as Misc. Case No. 62 of 1970. By an order dated November 9, 1971- the said application under Order 9, Rule 13 of the Code of Civil Procedure was dismissed on contest. The applicants In Misc. Case No. 62 of 1970 preferred an appeal before this court challenging the order of dismissal. The appeal was registered as F.M.A. No. 623 of 1973. For non-cornpliance pf an order passed by a Division Bench of this court, the appeal was dismissed is lawzima, but it was restored sub-sequently on the application of the appellants filed on April 30,1994.

(3.) In the meantime, on March 21,1994 the plaintiffs prayed for making the preliminary decree a final one and prayed for appointment of a survey passed Commissioner for partition. On an application dated September 14, 1994 filed by the plaintiffs, an order dated September 26,1994 was passed and the heirs and legal representatives of all the deceased defendants were substituted. Since no appointment of the Partition Commissioner was made, the plaintiffs again prayed before the court for appointment of a Partition Commissioner for effecting partition and for passing a final decree. By order No. 71 dated August 2, 1996 the learned Trial Judge allowed the prayer for appointment of Commissioner for partition arid directed the plaintiff to deposit at least a sum of Rs.700/- by August 16,1996 and directed, further, that after deposit of the said amount, the Partition Commissioner would be appointed on the date fixed. The defendant Nos. 55(a) to 55(e), that is, the heirs and legal representatives of the original defendant No. 55, filed an application under section 151 of the Code of Civil Procedure on August 16, 1996 for recalling of the said order No. 17 dated August 2, 1996. By an order No. 74 dated August 19, 1996 the said application was, also, rejected on contest with cost and the learned Trial Judge appointed Shri Prabir Kumar Choudhary as the Partiton Commissioner in pursuance to the earlier order dated August 2, 1996. The present civil order was issued on September 18,1996. On December 9,1999 a Division Bench of this' court comprising of Tarun Chatterjee and Prabir Kumar Samanta, JJ., dismissed F.M.A. No. 623 of 1973 filed against the order rejecting the application under Order 9, Rule 13 of the Code of Civil Procedure.