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Anil Chandra Banerjee and anr. Vs. Gopinath Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 21 of 1948
Judge
Reported inAIR1950Cal376
ActsCode of Civil Procedure (CPC) , 1908 - Section 146 - Order 22, Rules 3 and 10 - Order 43, Rule 1
AppellantAnil Chandra Banerjee and anr.
RespondentGopinath Mukherjee and ors.
Appellant AdvocateA.N. Bose, ; Harideb Chatterjee and ; Hemanta Kumar Bose, Advs.
Respondent AdvocateApurba Charan Mukherjee and ; Ganga Narayan Chandra, Advs.
DispositionPetition dismissed
Cases ReferredGobardhan v. Saligram
Excerpt:
- .....burdwan in a suit for partition.2. it appears that there were four brothers bidhusekhar, adyanath, akul nath and kali nath. it was alleged in the partition suit that akul nath and kali nath separated and bidhusekhar and adyanath were joint in property. adyanath's widow bhuban mohini sued the heirs of bidhusekhar, who was then dead, for a partition of the joint properties. it was numbered as partition suit no. 252 of 1931 and was filed on 21st february 1931. the suit was dismissed on 5th april 1933 and on an appeal being taken to this court, being appeal no, 148 of 1933, a preliminary decree was passed for partition by this court on 8th june 1936. it appears that no further steps were taken towards the final decree in the subordinate judge's court and the subordinate judge consigned the.....
Judgment:

Chunder, J.

1. This is an appeal against an order of the Subordinate Judge of Burdwan in a suit for partition.

2. It appears that there were four brothers Bidhusekhar, Adyanath, Akul Nath and Kali Nath. It was alleged in the partition suit that Akul Nath and Kali Nath separated and Bidhusekhar and Adyanath were joint in property. Adyanath's widow Bhuban Mohini sued the heirs of Bidhusekhar, who was then dead, for a partition of the joint properties. It was numbered as Partition Suit No. 252 of 1931 and was filed on 21st February 1931. The suit was dismissed on 5th April 1933 and on an appeal being taken to this Court, being Appeal No, 148 of 1933, a preliminary decree was passed for partition by this Court on 8th June 1936. It appears that no further steps were taken towards the final decree in the Subordinate Judge's Court and the Subordinate Judge consigned the record to the record room by his order dated 10th December 1936. It appears that Bhuban Mohini died on 6th November 1943. At the time of her death, it is said that Kali Nath was dead and Akul Nath was the sole surviving reversioner. It appears that Akul Nath did not get himself substituted in the partition suit nor did he take any steps. On 26th January 1944, he transferred the properties he has inherited as reversioner to Gopinath Mukherjee who is the petitioner in this case and is the respondent in this appeal. Gopinath applied to be substituted in the suit and the defendants, that is, the heirs of Bidhusekhar filed an objection, The objection was fought out by defendant 4 who is the appellant before us. The Subordinate Judge refused the prayer for substitution by his order dated 31st-August 1945 and on revision proceedings being taken in this Court in Revision Case No. 94 of 1946 the case was sent back to the Subordinate Judge for decisions on the merits. The Subordinate Judge has now allowed substitution. He has held that Order 22, Rule 3 and Order 22, Rule 10, Civil P. C., do not apply. He has further held that Section 146 of the Code applies and he has allowed substitution under Rule 146 of the Code. The present appeal relates to that order.

3. The first point that arises is whether an appeal at all lies. An appeal is a creature of statute and in the Code of Civil Procedure an appeal is given against a decree and against some orders which are considered as in the nature of a decree, for example, decisions under Section 47, Civil P. C. As against other orders to have a right of appeal the case must come within Order 43, Rule 1. Order 43, Rule 1 of the Code gives a right of appeal as against certain orders under Order 22, but gives no right of appeal as against an order under Section 146, Civil P. C. Therefore in the present case no appeal lies and the appeal is dismissed.

4. There has been filed a petition to treat this as a petition in revision in case an appeal does not lie. We are, therefore, taking it up as a matter in revision under Section 115, Civil P. C.

5. The very short point which really arises in this case is whether Gopinath can come under Section 146, Civil P. C. Reliance has been placed upon a decision of the Patna High Court in the case of Gobardhan v. Saligram, 15 pat. 82 : (A. I. R. (23) 1986 Pat. 123). In that case it was decided that the transferee from the legal representative of a deceased party had no right to come either under Rule 10 of Order 22 or Rule 3 of that Order. In the present case such has also been held rightly by the Subrdinate Judge. Then in that case it was further said that 'Section 146 authorises a person claiming under another person to make an application which the other person could have made. The appellant can make an application which Priyasakhi (that is the person through whom the claim was filed) could have made namely for substitution of her name. I fail to understand how he can apply for substitution of his own name.' In other words, according to the Patna decision as applied in this case the position would be that Gopinath may be entitled to ask for substitution of the name of Akul Nath but not for substitution of his own name. With great respect to the learned Judge of the Patna High Court, we are unable to agree with this view. To take a very simple contingency: If Akul Nath had died in the present case a day after the death of Bhuban Mohini, that is after having succeeded to the estate, would it be necessary for Akul's heirs to ask the Court to substitute a dead person instead of themselves in place of Bhuban Mohini In the present case, on the same analogy as Akul had no further interest in the property to be partitioned we do not see why it should be necessary for Gopinath to ask for the substitution of the name of Akul. What Section 146 of the Code means is that an application or proceeding of a like nature can be taken by the transferee as could have been taken by the transferor, not that he should make the identical application. As Akul could have asked for substitution and made an application to that effect, the transferee from Akul also as claiming through him under Section 146 of the Code can apply for substitution and the application in his case will be for the substitution of his name as the interest has now devolved upon him.

6. The Subordinate Judge, therefore, rightly decided that under Section 146, Civil P. C., Gopinath could ask for substitution of his name in place of Akul though Akul had not applied for such substitution himself. The Subordinate Judge rightly allowed the prayer of Gopinath.

7. The revision petition is, therefore, rejected with costs.

Sen J.

I agree.


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