IN THE HIGH COURT AT CALCUTTA

CIRCUIT BENCH AT JALPAIGURI CIVIL APPELLATE JURISDICTION

Present:

The Hon’ble Justice Debangsu Basak

And

The Hon’ble Justice Chaitali Chatterjee (Das)

F.A.T. 33 of 2024

Dipali Chakraborty & Ors.

Vs.

Purnima Chakraborty & Ors.

With

CAN 1 of 2024 CAN 2 of 2024

For the Appellants : Mr. Bapi Sarkar

Mr. Roumyadip Saha

For the Respondents : Mr. Bhaskar Roy Mahasaya

Ms. Taniya Bhowmik

Heard & Judgment on : January 8, 2026

Debangsu Basak, J.:-

1. Appeal and the connected applications are taken up for final hearing.

Attempt for mediation was made which did not succeed.

2. Appellants seek to prefer the appeal directed against a preliminary decree passed in a suit for partition. Preliminary decree was passed on May 23, 2011.

3. CAN 1 of 2024 is an application for condonation of delay while CAN 2 of

2024 is an application seeking stay of the proceedings.

4. Learned advocate appearing for the appellants submits that the appellants were seriously inconvenienced due to the death of the defendant no. 1 and thereafter due to the death of one of the son of the defendant no. 1 as also the son-in-law of the deceased defendant no. 1.

5. Learned advocate appearing for the appellants submits that, the defendant no. 1 expired in 2016. Thereafter the son-in-law of the defendant no. 1 expired. Subsequently, the son of the defendant no. 1 expired. All these deaths resulted in preventing the appellants from contesting the suit for partition.

6. Learned advocate appearing for the appellants submits that the appellants became aware of the preliminary decree and subsequent steps taken in the execution proceedings. Immediately thereafter, appropriate steps were taken by the appellants for the purpose of contesting the suit as also filing of the present appeal.

7. Referring to the length of the delay, learned advocate appearing for the appellants submits that, length of delay par se is not relevant. What is relevant is that whether or not adequate explanation is offered by the appellants for condonation of delay. He submits that, in the facts of the present case, appellants offered substantial explanation for the delay. The explanation should be considered leniently and delay in making and filing the appeal should be condoned. In support of such contentions of his case, learned advocate appearing for the appellants relies upon (1987) 2 SCC 107 (Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Others), (1998) 7 SCC 123 (M. Balakrishnan vs. M. Krishnamurthy)

and (2012) 12 SCC 693 (B. Madhuri Goud vs. B. Damodar Reddy)

8. Learned advocate appearing for the respondent submits that, the preliminary decree was passed on May 23, 2011. The death of the defendant no. 1 occurred on January 3, 2016. Application for substitution of the defendant no. 1 was allowed on December 5, 2018 although the appellants appeared in the suit on April 2, 2018.

9. Learned advocate appearing for the appellants submits that an Advocate Commissioner was appointed in terms of the preliminary decree. Such Advocate Commissioner visited the suit premises on May 12, 2022. The appellants were present during such visit of the Advocate Commissioner on May 12, 2022. Therefore, the contention of the appellants that they were not aware of the proceedings or the preliminary decree is misplaced.

10.Learned advocate appearing for the appellants submits that the report of the Advocate Commissioner was accepted by the learned Trial Judge on July 4, 2022 and that a final decree was passed on such basis on such date.

Thereafter, execution proceedings were filed.

11.Learned advocate appearing for the respondent draws the attention of the Court to the averments made in the application for condonation of delay as also the affidavit-in-reply. He submits that the appellants did not specify an exact date on which the appellants became aware of the proceedings in the application. However, in the affidavit-in-reply, the appellants claimed that on July 20, 2024, the appellants applied for certified copy