AMULLYA CHARAN ADHIKARY Vs. ANNADA CHARAN GHOSH

JUDGEMENT

(1.) The essential question which arose for consideration in this Reference by the Registrar of this Court in its Appellate Side, was that of his competency to cancel his own order recording a note of abatement The particular questions which arose were: (1) the true meaning, scope and effect of the abatement order in the connected Rule in the face of the order of substitution made in the main appeal, (2) whether, when the application for substitution in the appeal, on the death of the sole respondent, was pending before the Registrar (which was granted by him later), he was justified in passing the order abating the connected Rule on the ground that the petitioner had not taken steps for substitution in the Rule, in time, on the death of the sole opposite party (very same person), (3) whether the Registrar is competent as stated above, to cancel his own order recording abatement, and (4) whether the reference is maintainable.

(2.) A part of the necessary history with the relevant facts of the case is, in short, as follows: Against the decree of the Court of Appeal below, dismissing a suit for declaration of title and confirmation of possession, accepting the defence inter alia, viz., that the properly was debutter and that the plaintiff did not acquire any title, he presented the above Second Appeal in this Court, on April 20, 1963, Mr. Bhupendra Kumar Panda, who was formerly a Registrar for sometime of the Appellate Side of this Court, accepted the Vakalat-nama on the same date, i.e., April 20, and signed also on the front page of the Memorandum of Appeal as the Advocate for the appellant. The appeal was, thereafter, admitted under Order 41, Rule 11 of the Code of Civil Procedure on July 5, 1963. On that very day an application for stay was moved and Civil Rule No. 2515 (S) of 1963 was issued; but it appears that another advocate, viz., Mr. J.N. Nanda signed on the front page of the application for stay, as well as the affidavit portion thereof. Mr. Panda did not subscribe his signature on the said application for stay.

(3.) On July 18, 1963 casualty of the sole respondent in the appeal (Annada) occurred and this demise is the cause of the present reference. The notice of the Rule returned unserved on September 27/November 21, 1963 with Annada's death report (the sole opposite party in the Rule).