CHAYAN DUTTA ROY Vs. CHAYANIKA CHATTERJEE

JUDGEMENT

(1.) We had permitted withdrawal of the Memorandum of Appeal along with the certified copy of the judgment and decree of the lower Court for the purpose of presenting the same before the learned District Judge, Howrah by our order dated 4th March 2004. It appears that our attention was not drawn to the fact that the said appeal was not governed under section 388 of Indian Succession Act, on the impression whereof we had granted such permission. The learned counsel for the respondent, who had lodged caveat before the learned District Delegate in the proceeding under Part-IX of the Indian Succession Act, points out that the order cannot be sustained, therefore, he had prayed for recalling of the said order. Notices were directed to be given to the appellant as well as to the learned counsel representing the applicant. Notices have since been served upon the appellant and affidavit-of-service has since been filed. Acknowledgement Card has since come back. Notices have also been served upon the learned counsel representing the appellant but he declined to appear though accepted the notice on the ground that the appellant had taken away the brief and he has no instruction. We remember to have requested the learned counsel for the respondent to convey our desire to the learned advocate for the appellant, to appear before us. The learned counsel for the applicant/respondent submits that he has intimated our desire through a written notice, which is part of the supplementary affidavit-of-service. It is unfortunate that the learned advocate did not care to appear despite our request. We are sorry to note that the learned counsel despite being requested does not appear. We expected minimum courtesy from a learned lawyer.

(2.) Since our attempt to secure representation of the appellants have failed, we take up the matter today after having successively adjourned the same on earlier occasions.

(3.) Our attention was not drawn to the fact that this was an appeal refusing appointment of receiver by the learned District Delegate in a proceeding under Part-IX of the Indian Succession Act, after being contentious on the lodging of the caveat by the applicant/respondents in the proceeding before the learned District Delegate. Section 265 of the Indian Succession Act empowers the High Court to appoint such judicial officers within the district to act for the District Judge as delegates to grant probate and letters of administration in non-contentious cases within the prescribed local limits. In the present case, our High Court established by the Royal Charter has appointed District Delegate in the concerned Districts before whom the proceedings was initiated by the appellants. As soon as caveat was lodged and the matter became contentious, by reason of section 288 of the Indian Succession Act, the District Delegate could not continue with the proceedings and he was supposed to return the application to the applicant/appellant along with the documents, unless he impounded any of them, for being presented before the learned District Judge. It is contended on behalf of the applicant/respondent that ultimately the application had since been returned and presented before the learned District Judge before whom the proceeding is now continuing.