SANDHYA BASU MALLICK Vs. PRAMATHA NATH SEN
LAWS(CAL)-2019-9-165
HIGH COURT OF CALCUTTA
Decided on September 23,2019

Sandhya Basu Mallick Appellant
VERSUS
PRAMATHA NATH SEN Respondents

JUDGEMENT

- (1.) Before dealing with the instant application, I think it necessary to narrate the factual background of the dispute between the parties : CS No.540 of 1988 was filed by the plaintiff against the co- sharers for partition of certain immovable and movable properties. The said suit was decreed and preliminary decree was passed on 15th December, 2016 declaring 1/4th share of the plaintiff and each of the defendants in respect of immovable and movable properties involved in the said suit. So far as immovable properties are concerned, the parties have no dispute with regard to drawing up of final decree. The movable properties involved precious jewelleries inherited by the parties to the suit in respect of which preliminary decree for partition was passed declaring their 1/4th share over the said jewelleries.
(2.) In the suit itself the contesting defendant no.1 took a specific plea that the jewellery which was under his possession was distributed according to the share of the parties long before the institution of the suit. However, during trial of the suit, the defendant no.1 could not produce any document to establish his claim regarding distribution of such movable items amongst the parties to the suit. The trial court disbelieved the stand taken by the defendant no.1 and passed decree for partition in preliminary form in respect of the movable properties, viz. jewellery. The preliminary decree passed by this Court in the said suit has reached its finality. The plaintiff thereafter filed an application being GA 3055 of 2018 praying for drawing up of final decree.
(3.) GA 2035 of 2019 is an application filed by the plaintiff on the apprehension that the defendant no.1 may sale out or dispose of the jewellery under his possession only to deprive the plaintiffs and to frustrate the preliminary decree passed by the trial court. Therefore, the plaintiff/petitioner has prayed for the following reliefs by filing the instant application : (a) Mandatory Injunction directing the defendant to produce the jewelleries mentioned in Annexure-D to the plaint excepting item No. 2 and 3 to the commissioner of partition forthwith. (b) Commissioner of Partition be directed to distribute the jewelleries but after taking over the same to the co-owners in terms of the Preliminary Decree dated 15.12.2016. (c) If the defendant No. 1 fails to produce the jewelleries the property being a two stories building situated at 10, Lake Range, Kolkata - 700026, within Police Station- Tollygunge be attached: (d) Alternatively, the defendant No. 1 be directed to furnish a security of Rs. 60,00,000/- to this Hon'ble Court; (e) A receiver be appointed for the purpose of taking actual possession of the said properties situates at 10, Lake Range, Kolkata - 700026; (f) If the defendant No. 1 fails to handover the jewelleries or pay the shares to the other Co-owners in terms of money as per the plaintiff's valuation as pleaded in "paragraph 19", the said property be sold for the satisfaction of the claim of the Plaintiff/Petitioner No. 1 and other Co-owners; (g) Interim order of injunction be passed restraining the defendant No. 1 from selling and/or creating any third party interest in respect of the said property at 10, Lake Range, Police Station - Tollygunge, Kolkata - 700026; (h) Ad Interim orders in terms of prayers hereinabove; (i) Such further and/or other order or orders and/or direction or directions be passed to this Hon'ble Court may deem fit and proper; ;


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