Prasenjit Mandal, J. - (1.) THIS application is at the instance of the respondent and is directed against the order no.2 dated January 15, 2008 passed by the learned District Judge, Hooghly in Civil Revision Case No.137 of 2007 and subsequent orders thereon.
(2.) THE short fact is that the petitioner as plaintiff instituted a title suit being Title Suit No.133 of 1996 for declaration and injunction against the opposite party nos.1 & 2 together with plaintiffs mother, Mst. Farzennassa, since deceased. THE opposite party nos.1 & 2 are contesting the said suit by filing a joint written statement. THE plaintiff filed an application for temporary injunction and the opposite party nos.1 & 2 contested the said application. THEreafter, the learned Trial Judge [learned Civil Judge (Junior Division), Second Court, Hooghly] has disposed of the said application for temporary injunction by an order dated August 14, 2003. Being aggrieved, a misc. appeal was preferred by the defendant. That matter is pending. Subsequently, an application under Section 10 of the C.P.C. was filed by the defendant nos.1 & 2 and that application was rejected on contest by the learned Civil Judge. Being aggrieved, this revisional application has been preferred. Now, the point for consideration is whether the impugned order should be sustained. Upon hearing the learned counsel for the petitioner and on perusal of the materials on record, I find that the contesting defendants filed the application under Section 10 of the C.P.C. contending, inter alia, that Mst. Farzennassa Bibi, that is, the defendant no.3, filed a title suit being Title Suit No.67 of 1992 against the present plaintiff and that suit was dismissed on contest. Thereafter, Mst. Farzennassa Bibi filed a title appeal being T. A. No.51 of 2003 and that title appeal is still pending.
(3.) FOR that reason, they have prayed for stay of the instant suit till disposal of the appeal. Whatever may be the ground of appeal, in the instant case, I find that the learned Advocate for the petitioner has assailed the orders stating, inter alia, that the provisions of Section 115A of the C.P.C. have not been fulfilled for admitting the said revisional application by the learned District Judge, Hooghly. FOR that reason, this revisional application has been preferred. No doubt, if the application under Section 10 of the C.P.C. was allowed, there would not have been final disposal of the suit; but the suit should have been stayed till the disposal of the appeal meaning thereby no final disposal of the suit. Therefore, no revisional application lies before the learned District Judge, Hooghly. But, by the impugned order no.2 dated January 15, 2008, the the learned District Judge, Hooghly has entertained the revisional application under Section 115A of the C.P.C. and he has called for the L.C.R. and issued notice upon the opposite parties fixing the next date on March 15, 2008 for service return. This being the position, I am of the view that the learned District Judge, Hooghly has failed to exercise the jurisdiction vested in him in entertaining the application under Section 115A of the C.P.C. So, the impugned order dated January 15, 2008 cannot be sustained. It must be set aside for the same reason. The subsequent orders passed in the said revisional application cannot have any existence and so those orders are to be set aside. This revision application, therefore, succeeds. It is allowed.;