DR. BISHWAPATI CHATTERJEE Vs. SANJAY KUMAR

JUDGEMENT

(1.) The appellant has failed the application under consideration under Order 1, Rule 10 and Sec. 146 of the Code of Civil Procedure (for short. Civil Procedure Code).

(2.) The case of the appellant is that he had filed Title Suit No. 221 of 1993 for specific performance of contract on the basis of an agreement dated 16-10-1990 executed by original defendant Sushma Banerjee who died during the pendency of the suit in his favour. With regard to the same property Sanjay Kumar had filed Title Suit No. 69 of 1997 for specific performance of contract on the basis of an agreement dated 30-1-1990 executed in his favour by Sushma Banerjee. Since Sushma Banerjee died her heirs were substituted as defendants No. 1 and 2 in T. S. No. 69 of 1997. This Court by its order dated 20-7-2000 passed in C. R. No. 475 of 2000 directed the Court below to dispose of T. S. No. 221 of 1993 and T. S. No. 69 of 1997 both separately but on the same day.

(3.) Sanjay Kumar and Kanchan Rai who are respondent Nos. 1 and 2 in the memo of appeal filed by the appellant delayed the hearing of T.S. No. 221/ 93 by filing Civil revisions against the orders passed in this suit as well as in T.S. No. 69/ 97. The appellant ultimately came to this Court by filing CWJC No. 2757 of 2004 for expeditious hearing of T.S. No. 221/ 93 and this Court by order dated 9-7- 2004 was pleased to direct learned Subordinate Judge-VII. Bhagalpur to dispose of the suit within three months. This time was extended by this Court at the request of the learned Subordinate Judge, Bhagalpur and although respondent Nos. 2 and 3 appeared in T.S. No. 221/ 93 and contested the suit but they interestingly did not appear in T.S. No. 69/ 97 so that the suit may proceed ex parte. On 30-12-2004 the learned Subordinate Judge, Bhagalpur dismissed T.S. No. 221/ 93 filed on behalf of the appellant and on the same day decreed T.S. No. 69/ 97 ex parte. Against the judgment and decree of T.S. No. 221/93 the appellant has preferred FA No. 61 of 2005 which is pending in this Court for disposal. The further case of the appellant is that being aggrieved by the judgment and decree passed in T.S. No. 69/ 97 he has preferred FA No. 75 of 2005 in which he has filed the application under consideration. His further case is that Trial Court by its order passed on 27-3-97 and 20-4-2002 in T.S. No. 221/93 retrained respondent Nos. 2 and 3 to execute sale deed in favour of respondent No. 1 and legal right accrued in favour of the appellant and because property involved in both the suits are the same the appellant is very much aggrieved by the judgment and decree of T.S. No. 69/1997. Prayer has been made to grant leave to the appellant for preferring the present appeal against the judgment and decree passed in T.S. No. 69/97.