Suniti Raha & Anr vs Protima Raha (Tarafder) & Ors

Re: CAN 11395 of 2017 (Section 5)

CAN 11395 of 2017 is an application for condonation of delay in filing the instant appeal, being FAT 648 of 2017.

There has been a delay of 177 days in filing the said appeal. The petitioners have explained the reasons of delay by saying that there is no male member in the family of the petitioner no. 2, who, being a young lady, was expecting a baby at the relevant point of time and that is why nobody could take any steps in filing the instant appeal.

Such explanation is satisfactory and it is accepted. The delay in filing the instant appeal is, therefore, condoned.

The application for condonation of delay, being CAN 11395 of 2017, is allowed.

It is to be noted that despite direction for filing affidavit-in-opposition to the application for condonation of delay passed on 17th December, 2018, no such affidavit-in-opposition has been filed. Despite service nobody appears on behalf of the respondents. Let the affidavit of service filed in Court today be kept with the record.

From the report of the Additional Stamp Reporter dated 26th June, 2018 it is found that the learned Commissioner's report was not there, which was filed belatedly vide Filing No. A-14879. Such delay is hereby condoned.

Let the Commissioner's report be tagged with the Memorandum of Appeal immediately.

Re: CAN 11396 of 2017 (Stay)

This is an application for stay of operation of the impugned judgement and decree dated 8th March, 2017.

A suit for partition and separation of shares was filed and after preliminary decree the partition commissioner was appointed. The present appellants claimed to have ignorant about the commission work as well as the final decree passed by the Trial Court. According to them no notice was ever served upon them nor a copy of the commissioner's report was given and, therefore, they could not get an opportunity to challenge the veracity, authenticity and legality of the commissioner's report.

In absence of the respondents we are not in a position to ascertain the stage of the proceeding. However, the learned Advocate for the appellants submits that the stamp paper has been assessed and the same has been filed, therefore, there is every chance that the final decree shall be engrossed.

The final decree is challenged in the instant appeal and the moment it is engrossed, it would invite an anomalous situation in the event the appeal succeeds.

The instant application is thus disposed directing that there shall be a stay of operation of the impugned judgement and decree dated 8th March, 2017 passed by the learned Civil Judge (Senior Division), Bongaon, District - North 24 Parganas in Title Suit No. 41 of 2013 till the disposal of the instant appeal.

The application for stay, being CAN 11396 of 2017, is thus disposed of.

Re: F.A.T. 648 of 2017

Office is directed to bring the Lower Court Records by special messenger at the cost of the appellants.

Such cost shall be put in within one week from date.

After arrival of the Lower Court Records the office shall examine the same and if found complete, shall issue notice under Rule 12 of Chapter IX of the Appellate Side Rules upon the learned Advocate on record of the appellants.

The appellants shall prepare requisite number of informal paper books - printed, typewritten or cyclostyled, as the case may be, - out of Court, within four weeks from the date of service of notice of arrival of Lower Court Records and shall file the same in the Department upon serving a copy thereof upon the learned Advocate on record of the respondents.

All other formalities pertaining to preparation of paper books are dispensed with.

After filing of the paper books liberty is granted to the parties to pray for early disposal of the appeal.