PARAMESH CH. DAS Vs. TANMOY JYOTI MAHANTA

JUDGEMENT

(1.) The present application has been filed under Sec. 115 of the Code of Civil Procedure, 1908 challenging an order dtd. 16/6/2014 passed by the learned Additional District Judge No. 2, Kamrup (M) in Misc(J) Case No. 76/2014 arising out of Misc(Probate) Case No. 1/2013. By the impugned order, the aforesaid Misc(J) case which was filed under Order IX Rule 4 of the CPC was allowed and the case was restored to file.

(2.) I have heard Shri S.P. Roy, learned counsel for the petitioners. I have also heard Shri M. Sarma, learned counsel for the respondent no. 1. The respondent no. 2 has chosen not to appear in this case.

(3.) Shri Roy, learned counsel for the petitioners has submitted that in the Probate Case, the present petitioners were not originally made parties and accordingly they had filed impleadment application whereafter they were impleaded as parties. The petitioners claimed that they are legal heirs of Bhuban Chandra Das, who had executed the Will in question and was the subject matter of the Probate Case. The learned Court vide an order dtd. 20/7/2023 had however dismissed the case on default on both the counts of non-appearance of the party and not taking steps. Subsequently, the respondent no. 1 had filed an application under Order IX Rule 4 of the CPC for restoration of the Probate Case in which the present petitioners had filed objection. Vide the impugned order dtd. 16/6/2014, the petition for restoration was allowed, however with a cost of Rs.1,000.00.