1972-CALWN-76-1039 , 1972-AIR (CAL)-0-449 , 1972 (TLS)514822

HIGH COURT OF CALCUTTA

Coram : ARUN KUMAR MUKHERJEE, SABYASACHI MUKHERJI, M. M. DUTT

Appeal 112  Of  1964 And Suit No. 260 Of 1945

(JULY 31, 1972)

NURUL HODA VS. AMIR HASAN

SABYASACHI MUKHARJI, J.

( 1 ) ON 16th February, 1945 suit No. 260 of 1945 was tiled by the plaintiff, inter-alia for a declaration that the partnership business of Haji Qudabux Mohammed Ibrahim stood dissolved on and from 16th February, 1945, in the alternative, for dissolution of the said partnership, for appointment of Receiver, accounts, enquiries, injunction and other reliefs. Messrs. N. C. Bural and Pyne were the Solicitors for the plaintiff at the time of the filing of this suit On 6th of March, 1945 by an order in the said suit, the defendant. Zahir Hasan was appointed Receiver over the said partnership business. On 29th March. 1945 another suit being suit No. 507 of 1945 was filed by Nurul Hasan against his mother, brothers and sisters, inter alia, for partition and allotment in severalty of the properties and estates of Shaik Mohammed Ibrahim, since deceased. On 22nd May, 1945 by an order in suit No. 507 of 1945, Mr. P. K. Sen, Barrister-at-Law was appointed Receiver of the estate and effects left by Shaik Mohammed Ibrahim, since deceased, including the said business and Zahir Hasan was thus discharged from further acting as Receiver of the said partnership firm. On 30th August, 1960 M/s. Pyne and Pyne became the plaintiff's Solicitors on dissolution of M/s. N. C. Bural and Pvne. On 23rd August 1961 in suit No. 507 of 1945 the plaintiff obtained change from Messrs Pyne and Pyne to Messrs. P. D. Himatsinka and Co. On 27th of September, 1961 when Mallick, J. was delivering judgment in suit No. 507 of 1945. Amir Hasan submitted certain alleged terms of settlement for being recorded, thereupon the learned Judge was pleased to adjourn delivering judgment to enable the said Amir Hasan to make application in the said suit for recording the terms of settlement. On 18th of April. 1962 the application made by Amir Hasan for recording the alleged terms of settlement was dismissed. On 11th May, 1962 Mallick. J. delivered the judgment in suit No. 507 of 1945, inter alia, declaring the shares of the sons and daughters of Sheik Mohammed Ibrahim, since deceased, in the estate of the said deceased and directing a reference to ascertain the estate and effects of Sk. Mohammed Ibrahim. On 7th December, 1962 Nurul Hasan being defendant in suit No. 260 of 1945, died. Some time thereafter the plaintiff applied for and obtained an order of substitution dated 11th March, 1963 in appeal proceeding arising out of suit No. 507 of 1945. By 7th March 1963, time to make application for substitution of the heirs of the deceased, defendant No. 1. expired. On 23rd March. 1963 the plaintiff instructed Messrs. P. D. Himatsinka and Co. to obtain change from Messrs. Pyne and Pyne. On 3rd April. 1963 Messrs. P. D. Himatsinka and Co. sent a Warrant of Attorney for consent signature of Messrs. Pyne and Pyne. On 5th April. 1963, Messrs. P. D. Himatsinka and Co. received back the said Warrant from Messrs. Pyne and Pyne with their consent signature. On 11th April, 1963 cause papers relating to the above suit were sent by Messrs. Pyne and Pyne to Messrs. P. D. Himatsinka and Co. On 6th of May, 1963 summons was taken out for the present application. On 27th June. 1963 an order was passed by A. N. Ray. J. setting aside the abatement, recording the death of Nurul Hasan and ordering amendment of the plaint by substitution of the names of the heirs and legal representatives of Nurul Hasan in the cause title of the plaint. The learned Judge did not give any reason in the order. On 29th April 1964 appeal No. 112 of 1964 was filed against the said order of A. N. Ray. J. dated 27th June 1963. The said appeal came up for hearing before a Division Bench of this Court consisting of Sinha. J. (as his Lordship then was) and A. C. Sen, J. A prel

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