(1.) The preliminary objection : Maintainability of the appeal : Mr. Santanu Mukherjee, learned Counsel for the respondent, had taken a preliminary objection as to the maintainability of the appeal. According to him, the decree was passed on 20th December, 2001. Against the said decree, a review application was preferred on 3rd/4th January, 2002. This review was partly allowed by an order dated 15th July, 2002. Therefore, when the appeal was preferred on 11th September, 2002 against the judgment and decree dated 20th December, 2001, there was no judgment and decree, which stood modified by reason of the order dated 15th July, 2002, being the decree against which the appeal could have been preferred. The subsequent dismissal of the review application or rejection thereof on account of not being pressed by the applicant would not alter the situation and would still affect the maintainability of the appeal. In support of his contention. Mr. Mukherjee had relied upon a decision in Sushil Kumar Sen vs. State of Bihar, 1975(3) SCR 942. Relying on this decision, he contended that the principle laid down therein fully applies in the facts and circumstances of this case. Therefore, this appeal cannot be maintained.
(2.) Now on the question of merit of the case, it appears that the decree was passed under Order 12 Rule 6 of the Code of Civil Procedure (CPC). Elaborate argument was made for and against the decree by the respective counsel, which we do not like to deal with separately. We would be dealing with the respective submissions made by the learned Counsel for the respective parties at appropriate stages as would be relevant for the present purpose.
(3.) The admission has to be made in the pleading or otherwise. It may be oral. It may be in writing. In this case the admission was not made in the pleadings. It is neither made orally nor in writing. Mr. Mukherjee contends that the expression "otherwise" would include any admission made in course of any other proceedings particularly when such admission is made in another proceeding between the same parties involving the same property. He also contends that the admission need not be made by the party himself either orally or in writing. It would be sufficient if the party relies on or adopts a document authored by someone else containing certain statement in relation to the admission sought to be proved and such document is adduced in evidence and is acted upon and adopted by exhibiting the same.