NIRODE BARAN MUKHERJEE Vs. GAYATRI MUKHERJEE

JUDGEMENT

(1.) In this revision application, the plaintiff of Title Suit No. 100 of 1996 being the petitioner has challenged the Order dated 17th November 1998 passed by learned Civil Judge (Senior Division ) Bankura in Title Suit No.100 of 1996 whereby in terms of the application of the defendant praying stay of further proceeding of this Suit, the Court allowed the same. The application for stay of further proceeding of Title Suit No. 100 of 1996 was filed by defendant thereto on the ground that challenging the preliminary decree of the said partition suit dated 7th August, 1988, the title suit No.7 of 1998 since has already been filed and pending before the Court of Civil judge (Junior Division), Second Court at Bankura on the ground that such preliminary decree was passed upon exercising the fraud upon the Court by way of non-disclosure of different facts and suppression of material facts. By the impugned order, learned Court below stayed the proceeding of the partition suit being Title Suit No. 100 of 1996. Originally, the suit was filed against the defendant No.1 Shyamaprasad Mukherjee, a psychic patient upon making his two sons as proforma defendant. Court Guardian was appointed to contest the matter on behalf of Shyamaprasad Mukherjee but unfortunately this Court Guardian did not contest the case. Proforma defendants 2 and 3 who are the sons of said Shymaprasad Mukherjee also did not contest the matter, as a result, preliminary decree was passed Ex-parte on 17th August, 1998. After expiry of Shyamaprasad Mukherjee all the legal heirs including the widow, daughters and the sons were made parties by the Order dated 2nd January, 1990 of the learned Court below. The legal heirs by a petition dated 24th March, 1993 challenged the preliminary decree as passed without preferring any appeal to that effect. Such application was rejected by the learned Court below. The defendants that is the legal heirs of Shyamaprasad Mukherjee being aggrieved preferred a revisional application in this Court being C.O. No. 2647 / 1994 which was dismissed by the order dated 19th November, 1997 pased by Bhaskar Bhattacharya, J. upon holding that an ex-parte decree cannot be allowed to be set aside by an application as filed before the learned Court below and accordingly held that the impugned order rejecting such application was justified, since preliminary decree reached its finality.

(2.) It is an admitted fact that the petitioner did not prefer any appeal though such preliminary decree was passed in the year 1998. After long lapse of 10 years in the year 1998, the present revisioners who are the defendants of the suit filed the said Title Suit No.7 of 1998 praying for necessary declaration that the ex-parte preliminary decree dated 17th August, 1998 was not binding to them as such decree was passed exercising fraud. By the impugned order dated 17th November, 1998 learned Court below has allowed the application filed by the defendants and thereby had stayed further of this partition suit till finality of the Title Suit No. 7 of 1998.

(3.) Learned advocate of the petitioners submits that in view of exercise of fraud, preliminary decree can be challenged by a separate suit and the order of learned Court below is justified by passing the order of stay of further proceeding of the present partition suit till finality of the said suit being Title Suit No.7 of 1998.