SHIBA PADA CHOWDHURY Vs. SUDHANSU KUMAR SEN

JUDGEMENT

(1.) In each of these appeals preferred under Cl. 15 of the Letter Patent, on an objection taken by the Stamp Reporter of this Court which is being supported by the respondents in each case, a preliminary issue as to whether such an appeal is maintainable in the absence of any certificate of fitness from the learned Single Judge from whose orders of the appeals were preferred arises for consideration.

(2.) Letters Patent Appeals Tender Nos. 1020-21 of 1974 arise out of the following facts. One Nalini Bhusan Roy Chowdhury, the predecessor-in-interest of the present appellant, preferred a second appeal being Second Appeal No.1524 of 1964 to this Court against an appellate decree arising out of a suit for eviction. The appellant not having appeared when the appeal was called on for hearing, the appeal was dismissed for default by one of the learned Judges of this Court on January 25, 1971. The appellant Nalini Bhusan too died on January 13, 1973. The present appellant who is one of the heirs and legal representatives of the deceased Nalini filed two applications on August 14, 1973 namely (1) for restoration of the second appeal earlier dismissed for default and (2) the other for substitution upon setting aside the abatement. On these two applications two Rules were issued by this Court being C.R. 3004 and C.R. 3005 (S) of 1973. Both these applications failed on their respective merits at the final hearing and our learned brother A. K. De J dismissed those applications and discharged the Rules by his orders dated March 22, 1974. Against those orders the present two appeals have been preferred under Cl. 15 of the Letter Patent without however, obtaining any certificate of fitness from our learned brother A. K. De J. An objection has been raised by the Stamp Reporter that such appeals are not maintainable in the absence of any certificate of fitness from the learned single Judge. This objection is being supported by the respondents at the hearing before us. The Stamp Reporter relies on a decision of this Court in the case of Atul Chandra Das v. Haripada Singh in L.P.A.T. No.162 of 1973, dated February 20, 1974 though that was an ex parte order passed in the absence of the appellant.

(3.) Letters Patent Appeal Tender No. 3924 of 1973 arises out of a second miscellaneous appeal now pending in this Court being S.M.A.T. 2934 of 1972. That was an appeal against concurrent judgments and orders passed by the courts below dismissing the appellant's third objection under s. 47 of the Code of Civil Procedure in an execution both by the trial court as also by the lower appellate court. Pending the said second miscellaneous appeal in this court, the appellant filed an application for stay of execution proceeding. Such stay was granted by our learned brother Amaresh Roy J by his order dated November 7, 1973 but subject to the fulfillment of certain conditions as to deposit of security money. The conditions not having been fulfilled, the application stood dismissed. Against that order of our learned brother Amaresh Roy J, the above appeal under Cl. 15 of the Letters Patent has been preferred but without any certificate of fitness from the learned single judge. An objection similar to the one raised in L.P.A.T. No.1020-21 of 1974 has been raised by the Stamp Reporter in these appeals also which is being supported by the respondents.