19.03.2025 Item No.2 PG/KS Ct. No.7 C.O. 1403 of 2015 Sri Sankar Narayan Das (since deceased)

Represented by Smt. Mira Das & Anr.

Versus Asoke Kumar Banerjee & Ors.

Mr. Sagnik Chatterjee Mr. Sayan Mukherjee Mr. Biswajit Das …..For the Petitioners

1. None appears on behalf of the opposite parties. Mr. Sagnik Chatterjee, learned advocate appears on behalf of the petitioners. The matter is pending since 2015 and at no point of time the opposite parties appeared before the Hon’ble court . Hence, the matter is taken up for hearing.

2. The instant revisional application is directed against the order dated February 6, 2015 passed by the learned Civil Judge (Senior Division), 7th Court at Alipore, Sourth 24 Parganas in Title Suit No.108 of 1966 whereby the learned Court has been pleased to turn down the prayer for reconstruction of record as filed on behalf of the petitioners.

3. It is submitted that one, Rai Mohon Das, the predecessor-in-

interest of the petitioners filed a suit for realization of mortgage debt for a sum of Rs.23,474/- bearing Title Sit No.108 of 1966 against the predecessor in interest of the opposite parties before the learned Sub-ordinate Judge (presently designated as learned Civil Judge (Senior Division), 7th Court at Alipore, Sourth 24 Parganas). The suit was contested by the defendants by filing their joint written statement and defendant no.10 filed a separate written statement.

4. On April 30, 2017, the said suit finally came up for hearing and the learned Court was pleased to pass a decree in preliminary form against the defendant nos. 2 to 10 on contest and ex parte against the other defendants directing them to pay an amount of Rs.23,474/- within a period of three months with interest with the further observation that in case of default, the plaintiff/predecessor of the petitioners will be entitled to pray for final decree.

5. A first appeal being, F.A. No.573 of 1970 was preferred challenging the said judgment and decree and on September 29, 1972, an order of stay of drawing up of final decree in the suit was passed by the Hon’ble Division Bench of this Court in the first appeal being F.A. 573 of 1970 on the basis of an undertaking given by the appellants/defendants therein giving statement that they would deposit the entire decreetal cost before the learned Trial Court within December 15, 1972 and in default, the order would be vacated.

6. The appellants failed to comply with such order dated April

30, 1973 and accordingly, such first appeal being, F.A. 573 of

1970 stood dismissed.

7. The learned Additional Registrar, High Court, Appellate Side, Calcutta was pleased to direct the Lower Court Records (presently TCR) to be sent down to the learned Trial Court and the said order was complied with and the records were duly sent down to the learned Court under L. No.3582 on July

30, 1973.

8. It was formally recorded that the aforesaid first appeal stood dismissed in terms of the aforesaid order dated April 30, 1973. In the year 1977, Rai Mohan Das, the original plaintiff made a Will, wherein the present petitioners were the beneficiary and the mother of the petitioners Smt. Ashalata Das was made one of the executrixes of the said Will.

9. Smt. Ashalata Das prayed for probate before the learned Chief Judge, City Civil Court at Calcutta and a probate was granted to Smt. Ashalata Das, who died intestate on August 15, 2006 and the present petitioner was substituted as the sole plaintiff of the said Title Suit No.108 of 1966, who filed the revisional application and subsequently expired and the present petitioners were substituted as legal heirs of the said original petitioner.

10. After death of Smt. Ashalata Das, the present petitioners made a thorough search for papers relating to the aforesaid Title Suit No.108 of 1966, which was not available and he took out the certified copy of the Suit Register of the aforesaid suit and came to know about the preliminary decree, which was drawn in respect of the said title suit. A petit