PRATIMA MUKHERJEE Vs. AMITAVA MUKHERJEE

JUDGEMENT

(1.) This review petition has been preferred by four petitioners herein for setting aside the judgment and order of this Court passed on 28-2-2005 in F. A. O. No.2 of 2001 solely on the ground that the submissions advanced by Shri D. Chakraborty, learned counsel for them which provided the foundation for that order were contrary to their instructions and pleadings in the partition suit from which the said appeal originated and, therefore, the decision rendered on the basis of such submission need to be reviewed.

(2.) I have heard Mr. S. Talapatra, learned senior counsel, assisted by Mr. B. Banerjee, learned counsel for the petitioners and Mr. P. Deb Roy, learned counsel for the respondents.

(3.) Shri Amitava Mukherjee and Shri Subrata Mukherjee are the two brothers, the first and the second respondents herein. They claimed that they are the sons of one Late Debendra Kumar Mukherjee and Smt. Malati Mukherjee, the third respondent herein. The first and second respondents herein filed a partition suit No. T. S. (PJ/37/1999 against the petitioners herein. In the course of said suit they filed a prayer for appointment of Receiver in respect of Schedule-D property' of the plaint, which was disposed of by the learned trial Court on 13-9-2000 rejecting the prayer. It was pleaded by the above two respondents herein that after the death of Debendra Kumar Mukherjee on 25-4-1997, the petitioners herein had taken over possession of the D-Schedule business forcibly and paid them only Rs. 3,500/- as monthly grant. But after February, 1998 they ceased to pay the same, which prompted the respondents to submit a prayer for appointment of a Receiver. Aggrieved by the order rejecting their prayer to appoint a Receiver, they filed an appeal against the order of rejection dated 13-9- 2000 which was registered as F.A.O. No. 2/2001.