SMT. KAMALA ADHIKARY Vs. SMT. MANIKA DAS

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree dated March 28, 2005 passed by the learned Additional District Judge, 5th Court, North 24-Parganas at Barasat in Money Appeal No. 1 of 1998 thereby, setting aside the judgment and decree dated Jan. 27, 1987 passed by the learned 4th Court of Munsiff, Sealdah in Money Suit No. 68 of 1967.

(2.) As submitted by both Mr. Singhvi and Mr. Ghosh, learned Advocates appearing for the appellants and the respondents respectively, the original plaintiff, Sudhir Kumar Adhikary had filed the aforementioned money suit claiming, a decree for recovery of arrear rent in respect of the suit property situated at 2, M.M. Feeder Road, P.S. Belgharia, Kolkata 700 056 against the predecessor-in-interest of the respondents, Ajit Kumar Das, who died during the pendency of the suit. After the death of the original defendant, his heirs and legal representatives, being the respondents in this appeal, were substituted as the defendants in the money suit. The learned trial Judge decreed the said money suit in favour of the original plaintiff. The respondents carried the said decree passed by the learned Trial Judge in appeal, being Appeal No. 1 of 1988, before the learned 5th Additional District Judge, Barasat. During the pendency of the appeal before the learned lower appellate Court, the sole respondent plaintiff died and an application was filed before the learned lower appellate Court for substituting his heirs and legal representatives, being the appellants in this appeal. However, without disposing of the said application and substituting the present appellants in the said appeal, the learned lower appellate Court passed the impugned judgment and decree and set aside the judgment and decree passed by the learned trial Judge in said money suit.

(3.) At the time of admitting the second appeal, the Division Bench of this Court framed the following substantial question of law. "Whether the learned court of appeal below committed substantial error of law in reversing the judgment and decree passed by the learned trial judge notwithstanding the fact that an application for substitution on the death of the plaintiff-respondent, namely, Sudhir Adhikary, was not allowed by the learned first appellant court below, and, as such, the decree was passed against a dead person."