The executor of a will can be treated as a legal representative for substitutive actions in civil suits without requiring probate, ensuring continuity of legal proceedings.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. D. Mozumder, the learned Senior counsel assisted by Mr. P. Borah, the learned counsel appearing on behalf of the applicant. Also heard Mr. R. Banererjee and Mr. D. Sharma, both Senior counsels assisted by Mr. R. Chakraborty, Mr. A. Basu, the learned counsels as well as Mr. A. K. Sahewala, the learned counsels appearing on behalf of the opposite parties.

2. This is an application filed under Section 151 of the Code of Civil Procedure, 1908 (for short ‘the Code) for recalling of the common judgment and order dated 13.11.2014 passed by this Court in CRP No.47/2014 and CRP No.97/2014.

FACTS LEADING TO THE INSTANT APPLICATION:

3. One Mr. Hemendra Prasad Barooah (since deceased) had filed a suit being Title Suit No.41/2012 before the learned Court of the Civil Judge, Jorhat (hereinafter referred to as ‘the learned Trial Court’) against the applicant as well as the opposite party Nos. 1 and 2 seeking a decree that the plaintiff (Late Hemendra Prasad Barooah) was the sole and absolute owner of 8,61,918 equity shares of the opposite party No.1 company which is lying in the Demat Account bearing No. DP ID IN 301151 and Client ID 26424547 which were in the name of the plaintiff and the applicant herein maintained by the opposite party No.2. Along with the said suit, Late Hemendra Prasad Barooah also filed an application under Order XXXIX Rule 1 and 2 of the Code praying for an ad-interim injunction restraining the applicant herein, her servants, workmen, employees and agents from causing any transfer in whatever nature with respect to 8,61,918 shares of B & A Limited lying in the Demat Account bearing No. DP ID IN 301151 and Client ID 26424547 and further restraining the applicant herein from using the delivery slips lying with the applicant bearing No.AA44026920 to 929 and further restraining/directing the opposite party No.2, namely HDFC Bank Limited not to transfer the 8,61,918 shares of B & A Limited lying in the Demat Account bearing No. DP ID IN 301151 and Client ID 26424547. The said injunction application was registered and numbered as Misc. (J) Case No.27/2012. It is relevant to take note of that the said suit as well as the injunction application were filed on 13.08.2012.

4. On the date of filing of the said suit and the injunction application, the learned Trial Court passed an ex-parte ad-interim injunction thereby directing the parties to maintain status quo over the subject matter of the suit, i.e. the equity shares lying with the opposite party No.2 herein in Demat Account bearing No. DP ID IN 301151 and Client ID 26424547 till hearing of the injunction petition. Further to that, the learned Trial Court issued notice upon the applicant and the other opposite parties in the said injunction application to show cause as to why the ad-interim injunction shall not be granted as prayed for and in the meantime, the parties were directed to maintain status quo over the subject matter of the suit till disposal of the injunction petition.

5. The record reveals that the applicant filed her written objection to the injunction application as well as also filed the written statement in the suit on 03.06.2013.

6. The plaintiff i.e. Late Hemendra Prasad Barooah expired on 31.07.2013 before the injunction application could be taken up for disposal.

7. The opposite party No.3 herein on 08.08.2013 filed an application before the learned Trial Court bringing to the notice of the learned Trial Court that the plaintiff had expired on 31.07.2013 leaving behind him, his Last Will and Testament dated 19.09.2012 and Codicils dated 20.11.2012 and 13.02.2013. It was f