GOURLAL MITRA Vs. HARA SUNDARI PAUL

JUDGEMENT

(1.) On January 24, 1969 the appellant instituted the suit being suit No. 341 of 1969 against the predecessor in title of the respondent for the enforcement of a mortgage and a decree under Order XXXIV, Rule 4 of the Code of Civil Procedure in form No. 5 Appendix 'D' to Schedule I of the said Code.

(2.) The original defendant filed her written statement. Upon the death of the original defendant on June 7, 1963(?) the present respondent was substituted in the place and stead of the original defendant. The respondent filed her written statement in the suit on June 12, 1970. On April 24. 1972 the suit which had been appearing in the peremptory list of S. C. Deb J. for several days, was called on at about 12-15 p. m. The petitioner's counsel Mr. P. K.. Roy was not present at that time. The suit was passed over on the prayer of the Solicitor for the appellants.

(3.) The Solicitor for the appellant thereafter went to the counsel Mr. P. K. Roy in the court of P. K. Banerjee J. Mr. Roy was addressing the Court at that lime. At about 12-35 p. m., Mr. Roy concluded his address at the Court of P. K. Banerjee. J. and became engaged in certain company matters in the Court of Salil Kumar Roy Chowdhury J. Mr. Roy as soon as he was free, went to the Court of Deb, J. at about 12-55 p. m. Mr. Roy and the Solicitor for the appellant came to know that the suit had been called on in the meantime twice and dismissed for non-prosecution. The matter was mentioned by the learned counsel for the appellant at the time of rising of the Court during the mid-day recess; no order was made at that time since nobody on behalf of the respondent was present in Court.