BISNUPADA GHOSH Vs. SMT. TARA GHOSH & ANR.

JUDGEMENT

(1.) The instant revisional application (sic) out of an order being No. 40, dated December. 4. 1993 in Misc. Case No. 15 of 1987 of the 4th Court of the learned Munsif. Sealdah. the said Mise. Case was filed under Ss. 36. 37A and 38 of the Bengal Money Lenders Act by the heirs and legal representatives of one Sailendra Nath Ghosh for a declaration that the deed of sale executed by the said Sailendra Nath Ghosh on December 29, 1961 in favour of one Monoroma Ganguly was a loan transaction and mortgage by conditional sale. The said Misc. Case was not only filed against the said Monoroma Ganguly, but also against one Bishnu Pada Ghosh, who is alleged to have required for value the property covered by the said transaction by virtue of a conveyance, dated August 28, 1984. A declaration was also prayed for by the petitioner in the Misc. Case to the effect that the said Bishnupada Ghosh did not acquire am right, title and interest in the property covered by the transaction effected by and between Sailendra Nath Ghosh and Monoroma Ganguly, Petitioners in the Misc. Case also prayed for orders allowing them to pay by easy monthly instalments the amount due to be paid to the said Monoroma Ganguly and Bishnupada Ghosh after determination thereof. The reliefs claimed for in the Misc. Case also included a prayer for a permanent injunction restraining Bishnupada Ghosh and his men from interfering with the peaceful possession of the petitioners in the property in question. During the pendency of the Misc. Case Manoroma Ganguly died and no steps was at all taken by the petitioners of the Misc. case in bringing on record her heirs and legal representatives. Long after the expiry of the prescribed time limit for substitution of the heirs and legal representatives of Manoroma Ganguly, petitioners filed an application praying for striking out the name of Monoroma Ganguly and also for permitting them to proceed with the case as against Bishnupada Ghosh, Bishnupada Ghosh opposed the said application contending inter alia that the Misc. Case had abated by reason of failure to substitute the heirs and legal representatives of Manoroma within the prescribed time limit and that the case could not be continued as against him in the absence of those heirs and legal representatives. The matter came up for hearing before the learned Munsif on March 7. 1992 and by him Order No. 30 passed on that date the learned Munsif accepted the contention of Bishnupada Ghosh holding inter alia that the Misc. case could not be heard in the absence of heirs and legal representatives of Manoroma. In that view of the matter, he rejected the petitioner's application for striking out the name of Manoroma Ganguly. The learned Munsif did also by the self -same order recorded abatement of the Misc. Case. He further fixed April 8, 1992 as the date for taking steps by the parties. On April 8, 1992 Bishnupada Ghosh steps by the parties. On April 8. 1992 Bishnupada Ghosh came forward with an application praying for specifically recording an order of dismissal of the case itself on the ground of its having abated in its entirety. The said petition of Bishnupada Ghosh was heard by the learned Munsif and disposed of by the Order No. 40; dated December 4, 1993. By the said order the learned Munsif observed that the Misc. Case could not abate as a whole and, as such, there was no question of dismissal of the Misc. Case, he was also of the view that the petitioners of the Misc. Case could continue with the case at their risk as against Bishnupada Ghosh. Taking such a view of the matter, the learned Munsif rejected the application of Bishnupada Ghosh. Hence the instant revision at the instance of Bishnupada Ghosh.

(2.) It is urged on behalf of the revisionist/petitioner that the learned Munsif, having by his earlier Order No. 30, dated March 7. 1992 recorded the abatement of the Misc. case in its entirety and rejected the application of the petitioners of the said Misc. Case to proceed with the case in the absence of the heirs and legal representatives of deceased of Monoroina Ganguly, had absolutely no jurisdiction to record a finding as he did by his impugned order that there was no abatement of the Misc. Case in its entirety, particularly when the previous order of abatement, that is, the Order No. 30, dated March 7, 1992 was virtually a decree and as he step taken on behalf of the petitioners of the Misc. case in having that decree set aside in a court of competent jurisdiction, the said decree had reached its finality and could not be varied or set aside by the learned Munsif by the impugned order.

(3.) It is further urged on behalf of the revisionist/petitioner that the Misc. case was such that it could not be proceeded with against him alone in the absence of heirs and legal representatives of Manoroma Ganguly and that by reason of non -substitution of legal heirs and representatives of Manoroma within the prescribed time limit the Misc. case has really abated as a whole and not as against Monoroma alone.