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2016 DIGILAW 909 (CAL)

Ashim Kumar Mura v. Lakshmi Bera

2016-11-23

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2016
Jyotirmay Bhattacharya, J. 1. This first appeal is directed against the judgment and decree refusing to grant probate to the Will left by Malati Bera, the testatrix, published on 8th September, 1997 in a contentious cause. Being aggrieved by and dissatisfied with the said judgment and decree, the propounder has filed this appeal before this Court. 2. The appellants have taken out an application praying for permission to substitute the legal representatives of Susanta Bera, the respondent no.3 herein, after setting aside abatement on condonation of delay. It is stated in the said application that Susanta Bera died on 28th March, 2012 leaving behind him surviving his legal representatives as mentioned in the cause title of the substitution application. 3. On perusal of the record relating to this appeal, we find that the instant appeal was filed on 7th December, 2012. Thus, we find that the said respondent no.3 died even before filing of this appeal. Since the said respondent no.3 viz., Susanta Bera died before filing of this appeal, the principles of substitution will not apply in the present case. That apart, we find from the judgment and decree passed by the learned Trial Judge which are under challenge in this appeal that hearing of the said suit commenced on 20th June, 2012. Hearing of the suit was concluded on 10th September, 2012 and ultimately judgment was passed on 10th October, 2012. Thus, we find that the said respondent no.3 viz., Susanta Bera died during the pendency of the suit and even before the hearing of the suit commenced. 4. Since the said respondent viz. Susanta Bera died before commencement of hearing of the suit, the principles laid down under Order 22 Rule 6 of the Civil Procedure Code will not apply in the instant case. The suit, in our view, stood abated after expiry of the statutory period within which the plaintiff was required to bring the legal representatives of the said deceased on record by way of substitution. Thus, we hold that the suit abated on 28th June, 2012 and the judgment and decree were passed in the said suit after the suit stood abated. 5. Since the judgment and decree were passed in an abated suit, the decree passed in the said suit is an ineffective decree and also non est in the eye of law. Thus, we hold that the suit abated on 28th June, 2012 and the judgment and decree were passed in the said suit after the suit stood abated. 5. Since the judgment and decree were passed in an abated suit, the decree passed in the said suit is an ineffective decree and also non est in the eye of law. Hence, we hold that the present appeal which is filed by assailing such an ineffective decree is not entertainable by this Court. We, thus, following the principles as laid down by the Division Bench of this Hon’ble Court in the case of Kanailal Manna & Ors. Vs. Bhabataran Santra & Ors. reported in AIR 1970 Cal. 99 dismiss this appeal by holding that this appeal against an ineffective decree does not lie. 6. We, however, make it clear that any of the parties in the said suit may approach the learned Trial Judge for substituting the legal representatives of the said deceased after setting aside abatement on condonation of delay and in the event, any of the parties approaches the learned Trial Court with such a prayer and the prayer for substitution after setting aside abatement on condonation of delay is ultimately allowed by the learned Trial Court, the learned Trial Court will reconsider the said suit afresh after service of notice upon the substituted heirs as well as the other parties, in accordance with law. 7. Needless to mention here that in the event, no such step is taken by any of the parties in the court below, the suit will be deemed to be dismissed on abatement on account of death of the said respondent no.3 viz., Susanta Bera. 8. In view of dismissal of the appeal in the manner as aforesaid, no further order need be passed on the applications filed in connection with this appeal. The said applications filed in connection with this appeal are thus deemed to be disposed of. 9. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.