Bisnupada Ghosh vs Smt. Tara Ghosh and Another

Dibyendu Bhusan Dutta, J.—The instant revisional application (sic) out of an order being No. 40, dated December. 4. 1993 in Misc. Case No. 15 of 1987 of the 4th Court of the learned Munsif. Sealdah. the said Mise. Case was filed under Sections 36. 37A and 38 of the Bengal Money Lenders Act by the heirs and legal representatives of one Sailendra Nath Ghosh for a declaration that the deed of sale executed by the said Sailendra Nath Ghosh on December 29, 1961 in favour of one Monoroma Ganguly was a loan transaction and mortgage by conditional sale. The said Misc. Case was not only tiled against the said Monoroma Ganguly, but also against one Bishnu Pada Ghosh, who is alleged to have required for value the property covered by the said transaction by virtue of a conveyance, dated August 28, 1984. A declaration was also prayed for by the petitioner in the Misc. Case to the effect that the said Bishnupada Ghosh did not acquire am right, title and interest in the property covered by the transaction effected by and between Sailendra Nath Ghosh and Monoroma Ganguly, Petitioners in the Misc. Case also prayed for orders allowing them to pay by easy monthly instalments the amount due to be paid to the said Monoroma Ganguly and Bishnupada Ghosh after determination thereof. The reliefs claimed for in the Misc. Case also included a prayer for a permanent injunction restraining Bishnupada Ghosh and his men from interfering with the peaceful possession of the petitioners in the property in question. During the pendency of the Misc. Case Manoroma Ganguly died and no steps was at all taken by the petitioners of the Misc. case in bringing on record her heirs and legal representatives. Long after the expiry of the prescribed time limit for substitution of the heirs and legal representatives of Manoroma Ganguly, petitioners filed an application praying for striking out the name of Monoroma Ganguly and also for permitting them to proceed with the case as against Bishnupada Ghosh, Bishnupada Ghosh opposed the said application contending inter alia that the Misc. Case had abated by reason of failure to substitute the heirs and legal representatives of Manoroma within the prescribed time limit and that the case could not be continued as against him in the absence of those heirs and legal representatives. The matter.came up for hearing before the learned Munsif on March 7. 1992 and by him Order No. 30 passed on that date the learned Munsif accepted the contention of Bishnupada Ghosh holding inter alia that the Misc. case could not be heard in the absence of heirs and legal representatives of Manoroma. In that view of the matter, he rejected the petitioner''s application for striking out the name of Manoroma Ganguly. The learned Munsif did also by the self-same order recorded abatement of the Misc. Case. He further fixed April 8, 1992 as the date for taking steps by the parties. On April 8, 1992 Bishnupada Ghosh steps by the parties. On April 8. 1992 Bishnupada Ghosh came forward with an application praying for specifically recording an order of dismissal of the case itself on the ground of its having abated in its entirety. The said petition of Bishnupada Ghosh was heard by the learned Munsif and disposed of by the Order No. 40; dated December 4, 1993. By the said order the learned Munsif observed that the Misc. Case could not abate as a whole and, as such, there was no question of dismissal of the Misc. Case, he was also of the view that the petitioners of the Misc. Case could continue with the case at their risk as against Bishnupada Ghosh. Taking such a view of the matter, the learned Munsif rejected the application of Bishnupada Ghosh. Hence the instant revision at the instance of Bishnupada Ghosh.

It is urged on behalf of the revisionist/petitioner that the learned Munsif, having by his earlier Order No. 30, dated March 7. 1992 recorded the abatement of the Misc. case in its entirety and rejected the application of the petitioners of the said Misc. Case to proceed with the case in (he absence of the heirs and legal representatives of deceased of Monoroina Ganguly, had absolutely no jurisdiction to record a finding as he did by his impugned order that there was no abatement of the Misc. Case in its entirety, particularly when the previous order of abatement, that is, the Order No. 30, dated March 7, 1992 was virtually a decree and as he step taken on behalf of the petitioners of the Misc. case in having that decree set aside in a court of competent jurisdiction, the said decree had reached its finality and could not be varied or set aside by the learned Munsif by the impugned order.

It is further urged on behalf of the revisionist/petitioner that the Misc. case was such that it could not be proceeded with against him alone in the absence of heirs and legal representatives of Manoroma Ganguly and that by reason of non-substitution of legal heirs and representatives of Manoroma within the prescribed time limit the Misc. case has really abated as a whole and not as against Monoroma alone.

On behalf of the respondent/opposite parties it is contended that by the Order No. 30. dated March 7, 1992 the court did not specifically record the abatement-of the Misc. case in its entirely inasmuch as had it been done so. it would not have fixed any date for taking steps by the parties. The further contention of the opposite parties is that the question whether Manoroma was a necessary party to the case or not or far that matter whether the absence of legal heirs and representatives of Manoroma was fatal to the Misc. case is a question which would have arisen for a decision by the court below only during the trial of the Misc. Case itself and that the Order No. 30, dated March 7, 1992 could not be construed as an order of abatement of the Misc. case in its entirely.

Under Order 22 Rule 4(3) of the Code of Civil Procedure, on the expiry'' of the prescribed time limit for substitution of legal heirs and representatives of Manoroma, the misc, ease was liable to abate against Manoroma. But, to view of the fact that the petitioners of the Misc. case came forward with an application for permission, to strike out the name of Manoroma and to allow them to proceed with the case against the other opposite party, the court was called upon to decide the question as to whether Monorama''s name could be allowed to be struck out and the petitioners of the Misc. case could be allowed to proceed with the case as against the other opposite party in the absence of the legal heirs and representatives of Monoroma. In other words, the question whether the abatement that ensured by reason of non-substitution of legal heirs and representatives of Monoroma within the prescribed time limit was a partial abatement as against Monoroma or an abatement as a whole of the entire Misc. case was virtually raised at the instance of the petitioners of the Misc. case for a decision of the court below and the Court below by his Order No. 30, dated March 7, 1992 decided that question as against the petitioners of that Misc. case.

Mr. Bhattacharyya, learned Advocate appearing for the petitioner drew my attention to a decision of the Supreme Court in the case of Ramagya Prasad Gupta and Others Vs. Shri Murli Prasad and Others, wherein the Supreme Court laid down certain tests for deciding whether by reason of non-substitution of legal heirs and representatives-of one of the parties to an appeal, the appeal is to abate as a whole or against that party alone, having regard to the provisions of Section 36, 37A and 38 of the Bengal Money Lenders Act and the nature and character of the matters in controvery; involved in the Misc. case in the light of the test, laid down in the Supreme Court decision, 1 am satisfied that Monoromas legal heirs and representative''s were necessary parties to the Misc. case and that.by their absence it was not possible to determine effectively the rights and interests of the petitioners as against Bishnupada Ghosh. The Order No. 30, dated December 7, 1993 clearly,indicates that it was; an order of abatement of the entire Misc. case and in view of the nature and character of the said Misc. case it must be held that learned Munsif rightly recorded such an order of abatement.

Mr. Bhattacharyya further cited a decision of a division Bench of this court reported in 32 CWN 299 (Naimuddin Bisioas and Ors. v. Maniruddin Laskar and Ors.) wherein it was held that an order of abatement is vitually a decree and so long as it stands it must be considered to have determined the rights between the parties.

The effect of the order of abatement as against Monoroma in the instant case would be dismissal of the Misc. case as against Manororna and if the Misc. case can be deemed to have dismissed as against Manororna. the question of decreeing it against Bishnupada Ghosh could not arise at all. Moreover, if the Misc. case be allowed to be proceeded with in the absence of Manoroma''s legal heirs and representatives it could not rule out the possibility of two contradictory decrees being passed in the same Misc. case.

Thus. I have no hesitation to hold that the Misc. case did really abate as a whole and the court below clearly indicated in its Order No. 30, dated December 7, 1993 that it was recording abatement of the entire Misc. case. The mere fact that by the same order a date was also fixed for taking steps in the matter could not. in my view, mislend the petitioners of the Misc. Case that the court had kept the Misc. Case alive as against Bishnupada Ghosh. In view of my foregoing discussions it would necessarily follow that the impugned order (Order No. 40 dated 4.12.93) was wholly without jurisdicion and is required to be set aside. The revisional application is thus allowed, and the impugned order is set aside.

There will be no order as to costs.