NANI GOPAL NANDA Vs. BADAL KUMAR GIRI

JUDGEMENT

(1.) The facts leading to this revisional application may be summarised as follows:

(2.) Krishnahari Nanda, the grandfather of the Plaintiff -Petitioner executed a Deed of Gift in his favour in respect of 9 bighas of land on February 17, 1967. Subsequently, on February I, 1969, Krishnahari filed Title Suit No. 29 of 1969 in the Munsif's First Court at Contai for setting aside, this Deed of Gift. This suit was dismissed for default on May 16, 1973, but before that on August 12, 1970, Krishnahari executed two Deeds, in favour of the Defendant -Respondent No. 1 in respect of 92 dec. out of the lands gifted to the Petitioner on the basis of an allegedly antedated bainanama dated December 15, 1966. The Petitioner filed Title Suit No. 267 of 1973 for declaration of title and permanent injunction against the Respondent No. 1 and his four brothers, who were the Defendants Nos. 2 to 5. Of the Defendants only the Defendant No. 1 filed written statement and contested the suit. The Respondent No. 1 claimed that he alone had title to the disputed land and that his brothers had no interest therein. Title Suit No. 267 of 1973 was decreed on November 26, 1979. The Respondent No. 1 filed T.A. No. 7 of 1980. Thereafter on March 25, 1980 the Respondent no. I filed an application under Order 1 Rule 10 staling that two of his brothers Defendants, namely, Dhananjoy and Bholanath (the Defendants Respondents Nos. 4 and 2) had (sic) on October 19, 1977 and July 18, 1979, respectively. This application under Order 1 Rule 10 of the Code of Civil Procedure was rejected on April 15, 1980. Thereafter on April 28, 1980, the Respondent filed an application requiring the Court to pass an order that the suit had abated wholly. This application having been rejected on June 14, 1980, the Respondent obtained C.R. No. 2370 of 1980 and this Court remitted the case back to the District Judge, Midnapur, with directions to set aside (i) the decree in the Petitioner's Title Suit No. 267 of 1973 and (ii) to direct the learned Munsif to set aside the abatements (presumably on an application from the side of the Petitioner) on his satisfaction that this Was permissible under the law. In pursuance with this direction the learned District Judge, Midnapur, set aside the judgment and decree passed in T.S. No. 267 of 1973 and sent the suit back lo the Court of the learned Munsif for doing the needful. Before the learned Munsif the Petitioner Tiled an application for setting aside the abatements and substituting the heirs and legal representatives in place of the deceased Defendants along with an application under Sec. 5 of the Limitation Act for condonation of delay. His case was that he lived elsewhere and he came to know about the death of the said Defendant only when the Respondent filed his application under Order 1 Rule 10 of the Code of Civil Procedure before the Appellate Court. The Respondent No. 1 filed petitions challenging the contentions of the Petitioner on the plea that the Petitioner had been aware of tire death of the two Defendants all throughout. Both parties also adduced evidence before the learned Munsif. On a consideration of the circumstances of the case and the materials on record the learned Munsif by his order dated June 11, 1984 allowed the Petitioner's application for setting aside the abatements. Hence, this revisional application for setting aside the order of the learned Munsif and to pass other appropriate orders as considered fit. Subsequently on June 27, 1984 the learned Munsif passed an order asserting that the suit stood abated. An application under Sec. 5 of the Limitation Act has also been filed for condonation of delay in filing the application for setting aside the order passed on June 27, 1984.

(3.) It is urged from the side of the Respondent No. 1 that both the order dated June 11, 1984 and June 27, 1984, are appealable and that as such as they cannot be set aside in revision. '