JUDGMENT :

PRASENJIT BISWAS, J.

1. This instant appeal has been preferred by the appellants challenging the impugned order No. 104 dated 26th February, 2013 passed by the learned Additional District Judge, First Track Court Malda in connection with Misc. Probate Case No. 20 of 1996. There is inordinate delay in filing this instant appeal.

2. It is submitted on behest of the appellants that the aforesaid Probate Case was taken for first time on 19th May, 1996 and on that day learned Trial Court directed the respondent herein to serve notice upon opposite parties to the case. Since long notices were not served upon the opposites parties/appellants (herein), direction was passed by the learned Trial Court to take appropriate steps for causing service of notice. Thereafter, Opposite Party No. 5 Sashi Bala Mondal was served with the notice and she appeared before the Court on 24th January, 2006 through her learned Advocate by filing Vakalatnama. Opposites Parties Nos. 1 to 4 were also served with the notices and they appeared on 14th January, 2008 and prayed for filing written objection which was allowed by the learned Court below fixing next date of the case on 26th June, 2008.

3. On the said date the opposite party again prayed for time by filing petition and the said petition was rejected by the learned Trial Court fixing the date for ex-parte hearing. On 24th April, 2008 as no step was taken on behalf of the opposite parties, again date was fixed by the Trial Court for ex-parte hearing.

4. On 10th December, 2009 none appeared on behalf of the appellants despite repeated call and as such the Probate Case was dismissed for default. Thereafter, upon an application under Order 9 Rule 4 of the CIVIL PROCEDURE CODE by the Opposite Party case was restored on 5th February, 2010 by the trial court. On 13th September, 2010, the learned District Judge, Malda, directed that the matter to be transferred to the 1st Court of Learned Additional District Judge, First Track Court, Malda. The date was fixed on 7th December, 2010 but on the date none appeared on behalf of the respondent and as a result the case was again dismissed for default and thereafter on the strength of a petition filed by the respondent under Order 9 Rule 4 of the CPC the matter was again restored, fixing date on 11th January 2011 for ex-parte hearing.

5. It is the specific averment on the part of the appellant that they could only know about the order dated 26.02.2013 passed by the Trial Court in connection with misc. case No. 20/96 (probate) on 2nd February, 2019 as disclosed by the respondent in connection with another case. Thereafter, this appellant took step to file this instant appeal and accordingly the same has been filed causing delay of 865 days which is totally unintentional and there is no deliberate lapse/negligence on their part for preferring this appeal on late.

6. The above submission as advanced on behalf of the appellant was denied by this respondent by stating that the appellants did not explain the period of delay caused in preferring appeal after the Order passed on 26th February, 2013 and in view of such one can easily presume that the instant application filed by the appellant is suffering from material suppression of facts and there is unexplained delay in preferring the appeal and as such the same may be dismissed outright.

7. Our attention is drawn by the Learned Counsel on behalf of the respondent that from Order No. 103 dated 12.02.2013 it would reveal that this appellant filed hazira in the Probate Case on 26.02.2013 and after that date was fixed for taking evidence of the opposite party/respondent. It is further submitted o