ASHOK KUMAR NAG Vs. NARAYAN KUMAR ROY

JUDGEMENT

(1.) CHALLENGE in this revisional application under Article 227 of the Constitution is to order no.51 dated May 18, 2011 passed by the learned Judge, 10th Bench, City Civil Court at Calcutta in O.C. Suit No.11/2007. By the impugned order, the learned Judge rejected a petition filed under Section 151 of the Code of Civil Procedure by the petitioners, being the defendants in the suit, seeking recall of order no.50 dated April 19, 2011. The said order proceeded to allow a petition filed by the plaintiff/opposite party ex parte with the observation that I find no legal bar to make the will in question exhibited as sought for.

(2.) ONE Haran Chandra Nag (hereafter the deceased) executed a will dated February 20, 1993. He died on January 19, 1995 a bachelor, leaving behind him his two nephews, the petitioners, as his heirs. The opposite party, the executor of the will, thereafter filed an application under Section 276 of the Indian Succession Act, 1925 for grant of probate. The petitioners opposed the application contending, inter alia, that the opposite party had no locus standi to pray for grant of probate since the alleged will was not executed by the deceased and hence question of he being appointed executor does not arise. It was further contended that the alleged will was a forged document and the application had been filed to cheat and/or deprive the petitioners, upon whom the entire properties of the deceased had devolved by operation of law. The probate proceedings thus became contentious.

(3.) IN due course of time, the Presiding Officer of the 10th Bench retired. The case record along with the application filed by the opposite party was placed before the learned Judge-in-charge of the 10th Bench on March 15, 2011. However, since the Judge-in-charge was busy with his own files, hearing of the application was adjourned till April 1, 2011. On that day too, hearing could not progress since the Judge-in-charge was again busy with his own files and April 5, 2011 was fixed as the next date. On April 5, 2011 too, hearing was adjourned till April 19, 2011 owing to the same reason for which hearing had been adjourned previously.