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2017 DIGILAW 929 (CAL)

Narayan Prasad Saraff v. Pradeep Kumar Saraff

2017-11-29

BISWANATH SOMADDER, MOUSHUMI BHATTACHARYA

body2017
JUDGMENT : Re : GA No. 3352 of 2017 1. The Court: After considering the submissions made by the learned advocate for the applicant/petitioner and upon perusing the instant application for condonation of delay, it appears that sufficient cause has been shown to explain the delay in filing of the appeal and as such, the delay is condoned. The application for condonation of delay, being G.A. No. 3352 of 2017, is accordingly allowed. Re: APDT No. 37 of 2017 with GA No. 3354 of 2017 2. In terms of our order dated 13th November, 2017, the learned advocate for the appellant has explained the valuation of the appeal to the Stamp Reporter of the High Court, Original Side. 3. By consent of the parties the appeal is treated as on day’s list and taken up for consideration along with the application for stay. 4. The instant appeal has been preferred against an order dated 12th July, 2017, passed by the First Court in GA No. 1477 of 2017 (Pradeep Kumar Saraff vs. Bina Devi Saraff & Ors.). The application, GA No.1477 of 2017, contained two prayers, which are set out herein below:- “(a) An order may be passed directing the Learned Special Officer to disburse a sum of Rs.2 Lacs from the joint family friend lying with him in favour of the petitioner on any terms as may be imposed by this Hon’ble Court. (b) Such further and/or other order or orders as this Hon’ble Court may deem fit and proper;” 5. The Learned Single Judge, however, has passed the following order:- “The defendant No.2 initially had taken objection that all the co-owners of the properties have not been impleaded in the suit. An opportunity was given to the defendant No.2 to satisfy this court that all the parties are not on record. The shares of the parties are not in dispute. The learned counsel representing the defendant No.2 is unable to furnish the names of the persons who have been left out in this partition suit. In absence of any specific averment that there are other co-owners or co-sharers of the properties, this court proceeds to pass a preliminary decree in terms of the shares mentioned in paragraph 17 of the plaint and the preliminary decree shall be drawn up on the basis of the shares as declared in the said paragraph. In absence of any specific averment that there are other co-owners or co-sharers of the properties, this court proceeds to pass a preliminary decree in terms of the shares mentioned in paragraph 17 of the plaint and the preliminary decree shall be drawn up on the basis of the shares as declared in the said paragraph. The parties shall be at liberty to divide the properties according the declared shares by metes and bounds within four weeks from date, failing which any party may apply for appointment of a commissioner of partition to give effect to the preliminary decree. The special officer is holding a substantial amount. The said amount is also required to be distributed in accordance with the declared shares. On the basis of the documents disclosed by the defendant No.8 with regard to immediate necessity of a sum of Rs. 2 lakh to meet his medical expenses, the special officer shall disburse a sum of Rs. 2 lakh in favour of the defendant No.8 to be adjusted towards his shares and/or are owelty money, as the case may be, at the stage of final decree. GA No. 1477 of 2017 is disposed of. The department is directed to draw up the preliminary decree as expeditiously as possible.” 6. The instant appeal has been preferred by the defendant no.2. 7. It is quite apparent from the prayers-as set out hereinbefore-that the application, being GA No.1477 of 2017, was only for passing of an order directing the Special Officer to disburse a sum of Rs.2 Lacs from the joint family fund lying with the Special Officer in favour of the applicant, being the defendant no.8. However, the learned Single Judge proceeded to pass a preliminary decree in terms of the shares as mentioned in paragraph 17 of the plaint while disposing of GA No.1477 of 2017. Paragraph 17 of the plaint appears to have been controverted by the appellant/defendant no.2 in paragraph 19 of his written statement. It further appears that the averments made in paragraph 19 have been made in the backdrop of statements made in various sub-paragraphs as contained under paragraph 6 of the written statement. Paragraph 17 of the plaint appears to have been controverted by the appellant/defendant no.2 in paragraph 19 of his written statement. It further appears that the averments made in paragraph 19 have been made in the backdrop of statements made in various sub-paragraphs as contained under paragraph 6 of the written statement. In view of such statements made in the written statement, especially those contained in subparagraph (b) of paragraph 6 and paragraph 19 of the written statement, the order passed by the learned First Court on 12th July, 2017 in G.A.1477 of 2017 cannot be sustained and is liable to be set aside and is accordingly set aside. 8. This order, however, shall have no effect to the directions given by the First Court for disbursement of funds by the Special Officer. The appeal and the application for stay stand allowed accordingly.