SACHINDRA CHANDRA CHAKRAVARTI Vs. JNANENDRA NARAYAN SINGH ROY

JUDGEMENT

(1.) This is an application by a defendant appellant praying for various reliefs including one for setting aside abatement If any, amendment of the cause title and body of the memorandum of appeal etc.

(2.) One Jnanendra Narayan Singh Roy filed a suit in this Court being Suit No. 247 of 1948 against Subodh Chandra Chakravorti and several others and obtained a money decree therein. In execution of the decree he levied attachment on 2-4-1953 to the extent of Rs. 26,000/- in respect of moneys in the hands of the Executive Engineer, North Eastern Railway on the allegation that Subodh Chandra Chakravorti was the sole proprietor of Chakravorti and Company. The appellant Sachindra Chandra Chakravorti preferred a claim against the said attachment in or about June 1953 alleging that under a registered deed of dissolution dated 9-8-52, it was he and not Subodh Chandra Chakravorti who was the owner of the moneys attached. On 21-6-54 Jnanendra Narayan Singh Roy filed a suit in this Court being Suit No. 307 of 1954, against Sachindra Chandra Chakravorti and Subodh Chandra Chakravorti praying for a declaration that the dated of 9-8-52 was void as against him and a further declaration that the moneys lying with the North Eastern Railway and payable to Chakravorti and Company were liable to attachment for recovery of the decretal amount in Suit, No. 247 of 1948. The suit was contested by the appellant herein and a decree was passed on 22-12-61 in favour of the said plaintiff. By an order made by the Trial Judge the operation of the decree was stayed till 15-3-62. The plaintiff died on 23-3-62 leaving him surviving his widow Sm. Ava Singh Roy and three children.

(3.) The decree was settled and passed on 18-6-62. On 16-7-62, the present appeal was filed by Sachindra. Chandra Chakravorti without a certified copy of the decree with leave of this Court and stay of execution was obtained ex parte on his undertaking to file a certified copy. On the next day a clerk of the appellant's solicitor went to serve a copy of the notice of motion in connection with the application for stay on the solicitor for the respondent Jnanendra Narayan Singh Roy and came to learn that he was dead. The appellant's solicitor S. K. Guha wrote to his client informing him of the death of the respondent and he also asked T. P. Mitra solicitor for the respondent to supply him with particulars regarding the heirs and legal representatives of the deceased. On 20-8-62, the appellant received his solicitor's letter and wrote back requesting, him to take the necessary steps. The respondents' solicitor T. P. Mitra wrote to the appellant's solicitor on 31-8-62 informing him that the respondent had died on 23-3-02 leaving a widow and minor children. On receipt of this letter S. K. Guha wrote to the appellant enclosing a copy of T.P. Mitra's letter and asking him for instructions. It is said that the appellant received the solicitor's letter at Koraput after it had been redirected from Cuttack on 10-9-62 and on 11-9-62, he wrote to his solicitor asking him to make an application for substitution. S.K. Guha received the letter on 15-9-62 and instructed counsel to draw the necessary petition. On 17-9-62 a draft petition was received from counsel. The solicitor Guha caused the same to be engrossed and stamped on 19-9-62 and despatched the same to the appellant by registered post on 20-9-62. The appellant is unable to give the date on which he received this registered packet but he states in paragraph 7 of his affidavit affirmed on 7-2-63 that the Judge's Court at Cuttack closed for the Puja vacation one day alter the receipt of this letter and when he went to the said Court the day next after receiving the said petition for affirmation of the same before a Commissioner he found that although the Criminal Courts were open the Judge's Court was closed for the long vacation. According to the appellant he knew that this Court would remain closed from 28-9-62 to 18-11-62 and he therefore left for his worksite away from Cuttack. He received a letter from his solicitor on 14-11-62 reminding him about affirmation and return of the petition. He went back to Cuttack on 17-11-62 got the petition affirmed in the Judge's Court and sent the same to Calcutta the next day.