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2016 DIGILAW 894 (CAL)

Arun Singh v. Patal Singh

2016-11-21

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2016
Jyotirmay Bhattacharya, J. : 1. Leave is granted to the learned advocate-on-record of the appellants to rectify the defects in the memorandum of appeal in the light of the report of the Stamp Reporter. 2. This first miscellaneous appeal is directed against an order of remand passed by the learned Additional District Judge, 5th Court, Paschim Medinipur in Title Appeal No. 4 of 2010 at the instance of the defendant nos. 1 to 4 along with the legal heirs of some of the defendants since died. 3. This appeal arises out of a suit for partition. A preliminary decree was passed by the learned Trial Court in the said suit. The preliminary decree passed by the learned Trial Court was challenged in appeal by the appellants herein. The said appeal was registered as Title Appeal No. 4 of 2010. The impugned judgment passed by the learned Trial Judge was set aside by the learned first Appellate Court and the suit was remanded back to the learned Trial Court for rehearing. The legality of the said order of remand is under challenge in this appeal at the instance of the appellants. 4. While considering this appeal for the purpose of its admission under Order XLI Rule 11 of the Civil Procedure Code, our attention was drawn by Mr. Mahata, learned advocate appearing for the appellants that one of the defendants viz., Niranjan Singh who was defendant no.3/appellant no.8 before the learned first Appellate Court died on 26th September, 2012 i.e. before commencement of hearing of the appeal. His heirs were not substituted in the appeal. In fact, no step was taken for bringing his legal representatives on record. None of his heirs was on record as party in the said appeal in any other capacity. The estate of the said Niranjan Singh, since deceased, remained unrepresented at the time of hearing of the appeal before the learned first Appellate Court. 5. The fact relating to the death of Niranjan Singh was not brought to the notice of the learned first Appellate Court. As such, the learned first Appellate Court proceeded with the hearing of the appeal in ignorance of the death of the said Niranjan Singh and ultimately decided the said appeal by setting aside the judgment and decree of the learned Trial Court and remanded the suit to the court below for fresh trial. As such, the learned first Appellate Court proceeded with the hearing of the appeal in ignorance of the death of the said Niranjan Singh and ultimately decided the said appeal by setting aside the judgment and decree of the learned Trial Court and remanded the suit to the court below for fresh trial. While passing the order of remand, learned first Appellate Court, however, confirmed some of such findings of the learned Trial Judge which are also under challenge in this appeal. 6. Since the suit for partition cannot be decided finally in the absence of one of the co-sharers, we are of the view that the order of remand which was ultimately passed by the learned first Appellate Court is ineffective order, inasmuch as, such order was passed without hearing one of the parties in the said appeal. We, thus, hold that no appeal, in fact, lies against such an ineffective order of remand passed by the learned first Appellate Court. Accordingly, we decline to entertain this appeal. 7. We, however, give liberty to the appellants to approach the learned first Appellate Court to regularize the appeal after pointing out the death of one of the appellants viz., Niranjan Singh during the pendency of the appeal and his estate remained unrepresented at the time of hearing of the appeal. 8. We, thus, clarify that in the event the appeal is regularized by bringing the legal representatives of the said deceased defendant/appellant viz., Niranjan Singh on record, the learned first Appellate Court will re-hear the said appeal and decide the same finally after notice of appeal is served upon the legal representatives of the said deceased defendant/appellant. In this set of facts, we dispose of this appeal itself without admitting the same under Order XLI Rule 11 of the Civil Procedure Code. 9. The appeal and the applications filed in connection therewith are, thus, disposed of with the above observations. 10. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.