PASUPATI GHOSH Vs. MARITYUNJOY GHOSH

JUDGEMENT

(1.) THIS is an application under Article 227 of the Constitution of India. This application has been directed against the order No. 55 dated 11. 7. 2006 passed by the learned 1st Assistant District Judge at Barasat in Title Suit No. 383 of 1994.

(2.) PETITIONERS' Case is that Mrityunjoy Ghosh and others, opposite parties in the present application filed Title Suit No. 383 of 1994 being a suit for partition and for declaration that the ex parte decree dated 8. 9. 1982 followed by final decree dated 3. 11. 1992 in Title Suit No. 127 of 1997, as collusive, fraudulent, null and void, inoperative and not binding upon them. There were many co-sharers/parties including the plaintiffs totally numbering 23 persons in that suit before the learned 1st Assistant District Judge, Barasat. The plaintiff No. 8 in the suit, Gourirani Ghosh and the plaintiff No. 9 Nabanita Ghosh died and the present opposite party No. 1 and others filed application under Order 22 Rule 9 of the Code of Civil Procedure in Misc. Case No. 34 of 2006 for setting aside the abatement order since no step for substitution of deceased Gourirani Ghosh and Nabanita Ghosh could be taken within the prescribed period as they had no knowledge about the said date. Learned Civil Judge (Sr. Division) 1 st Court, barasat rejected the said application for setting aside the abatement with the observation that on the death of Gourirani Ghosh and Nabanita Ghosh, all their legal heirs were not impleaded in the said application for setting aside the order of abatement and consequence substitution of the legal heirs and representatives of plaintiff No. 10 - Gourirani ghosh and plaintiff No. 9 - Nabanita ghosh and also no notice upon the legal heirs of such deceased plaintiffs was served. Subsequent to the said rejection, opposite party No. 1 Mrityunjoy Ghosh and other opposite parties filed another application under Order 1 Rule 10 (2)of the Code of Civil Procedure for impleading the legal heirs of the said plaintiff nos. 10 and 9 before the learned 1st Assistant District Judge, Barasat and the learned Judge allowed the said application in his order No. 55 dated 11. 7. 2006, after hearing of the respective parties and that the present petitioners have stated that the Title Suit No. 383 of 1994 was not a suit for partition and claimed that the suit was abated and no application under Order 1 Rule 10 (2)of the Code lie.

(3.) MR. S. P. Roy Chowdhury, learned senior Advocate for the petitioners submitted that it is nobody's denial that the Title Suit No. 383 of 1994 abated as per statutory provision of the Code since no step was taken for the substitution of the deceased plaintiff Nos. 10 and 9 within the statutory period as provided under Order 22 Rule 4 of the Code. It is further submitted by Mr. Roy Chowdhury that though the plaintiffs in that suit Mrityunjoy Ghosh and Ors. filed application under Order 22 Rule 9 for setting aside the order of abatement and prayed for substitution of the legal heirs and representatives of deceased Gourirani Ghosh and Nabanita Ghosh the said application also was rejected by the learned trial Judge and abatement order prevailed.