SACHCHIDANANDA BANERJEE Vs. MOLY GUPTA AND OTHERS

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the judgment and decree of dismissal dated 2nd Dec., 2014 (hereinafter referred to as the impugned judgment) passed by Honourable Single Judge in C.S. No. 643 of 1990, the plaintiff/appellant has preferred this appeal.

(2.) Plaintiff/appellant filed the suit against Karuna Gupta and her son Samir Kumar Gupta as defendants nos. 1 and 2 respectively for specific performance of contract by the said Karuna Gupta on the basis of a written agreement dated, Aug. 13, 1988 between Karuna Gupta and the plaintiff for sale of the premises No. 12F, Nather Bagan Street, Calcutta. The said defendants filed separate written statements.

(3.) During pendency of the suit in the First Court, Karuna Gupta died on 5th Nov., 1995 and the plaintiff, upon amendment of plaint, stated that the then defendant No. 2, Samir Kumar Gupta was her sole heir and legal representative. On 7th Sept., 2007, the said suit was decreed ex parte in favour of the plaintiff on the belief that a fresh notice as per the direction of the Court was given to the said defendant Samir Kumar Gupta but none turned up on behalf of the defendant. The plaintiff, as decree-holder, filed an execution case and that execution proceeding being No. G.A. 515 of 2008 was disposed of on 11.02008 by the Honourable Single Judge. Thereafter, the respondents in this appeal - as heirs and legal representatives of Samir Kumar Gupta - filed an application for setting aside the ex parte decree of suit and order of disposal passed in the execution proceeding, inter alia, on the ground, in substance, that the said decree and orders were passed against the defendant No. 2, Samir Kumar Gupta, who was declared dead by a competent Court of law on 6th June, 2007 as the said Samir Kumar Gupta was missing from 18th June, 1997 and remains missing for more than seven years continuously, which was within the knowledge of the plaintiff. The said application of the respondents was allowed on 19th Dec., 2011 by an Honourable Single Judge in G.A. No. 1400 of 2010. The ex parte decree and the order passed in the execution proceeding were set aside. Plaintiff/appellant filed an appeal, being No. APOT 344 of 2012 before a coordinate Division Bench and in that appeal it was observed "......we think that the learned Trial Judge has passed the perfect order and it does not call for any interference". The said appeal was disposed of on 28th Aug., 2012. Thereafter, the present respondents - as heirs (wife, son and daughter) of Samir Kumar Gupta - contested the suit in the First Court and after completion of trial, the impugned judgment and decree of dismissal was passed.