- (1.) This hearing arises out of an application under Section 115 of the C.P.C. and is directed against the order dated 3/10/1994 passed by the learned District Judge, Alipore in Misc. Appeal No. 408 / 74 arising out of the Order No. 2 dated 26/07/1994 passed by the learned Assistant District Judge, 8th Court. Alipore in Title Suit No. 60 / 94.
(2.) The petitioners are the purchasers of premises No. 55 / 1, Kabi Bharati Sarani, Calcutta (formerly known as Lake Road) by purchase from the opposite parties Nos. 2 to 9 by valid Deeds of Conveyances executed pursuant to and in terms of the decree dated 5/07/1993 passed by this Hon'ble Court in Suit No. 544 / 92 (Assam Bengal Veneers (P) Ltd. v. Mohit Ghosh). As a matter of fact, against an order passed in the said Suit an appeal was taken being Appeal No. 897 / 92 and a compromise petition was filed in the Appellate Court and a decree was passed in pursuance of this compromise petition. About a couple of months after the passing of the said decree, the respondent No. 1, LICI made an application before the Court of appeal for leave to intervene in the above proceedings and to be added as party respondents in the said appeal, for setting aside the order dated l 5/01/1993, for status quo as on 15/01/1993 and for injunction restraining the appellant and the respondents in the appeal from changing the nature and character of the plot in any manner and not to disturb the possession of the respondent No. 1. Appropriate ad interim orders were also prayed for by the respondent No. 1. The learned Division Bench of this Court did not pass any ad interim order on the prayer of the O. P. No. 1. During the pendency of the said application the O. P. No. 1, LICI filed Title Suit No. 60 / 94 in the Court of the Learned Assistant District Judge, 8th Court, Alipore for a decree of declaration to the effect that the plaintiff was a tenant under the defendant Nos. 1 to 8 of that suit in respect of premises No. 55 / 1, Kabi Bharati Sarani, Calcutta (formerly known as Lake Road), at a jama of Re. 1 /- per annum, for a decree for recovery of physical possession of the said premises in dispute from the defendants, for a decree for a permanent injunction restraining the defendants and their agents and servants from changing the nature and character of the suit property from transferring the physical possession of the disputed property to any third party and from creating any disturbance to the peaceful use thereof by the plaintiff as also for a decree for temporary injunction and mandatory injunction and other reliefs. After the filing of the suit O.P. No. 1 made an application under Order 39, Rules 1 and 2 of the C. P. C. and obtained an ex parte order of ad interim injunction restraining the defendants of the suit who are the petitioners herein from changing the nature and character of the disputed property and / or from transferring the physical possession of the suit premises or any part thereof to any third party or from creating any sort of disturbance or obstacle to the peaceful user thereof and from dealing with the suit property in any manner whatsoever prejudicial and detrimental to the interest of the plaintiff till the hearing of the injunction petition. The learned Trial Court was pleased to pass an interim order of injunction being Order No. 2 dated 26/07/1994. A copy of the said order has been annexed with the revisional application and marked Annexure "B".
(3.) Being aggrieved by and dissatisfied with the said order the petitioners here decided to prefer an appeal and instructed their Advocate to prefer and present a Memorandum of Appeal in the appropriate Court. The learned Advocate obtaining the certified copy of the said order preferred an appeal before this Hon'ble Court being F.M.A.T. No. 2472 / 94 on 24/08/1994. The said matter was mentioned before the Hon'ble Mr. Justice S. K. Mookherjee and the Hon'ble Mr. Justice J. K. Mathur on 7th Sept., 1994. The said matter was taken up for hearing on the ground of urgency but at the time of hearing the Hon'ble Court observed that the appeal was not maintainable before the Hon'ble High Court. Then on the prayer of the learned Advocate for the appellant the said appeal was allowed to be withdrawn and the petitioners herein were permitted to file the same in the appropriate forum. The Learned Advocate for the petitioners obtained xerox copy of the order on 26-9-1994 and presented the Memorandum of Appeal after withdrawing it before the learned District Judge at Alipore on lst October, 1994. The appeal before the Hon'ble High Court was filed in time but the Memorandum of Appeal was presented before the learned District Judge at Alipore after a delay of 28 days. So an application for condonation of delay was filed before the Court of learned District Judge along with filing of the Memorandum of Appeal along with application. Another application was made on behalf of the appellant for stay of operation of the impugned order being Order No. 2 dated 26/07/1994 passed by the learned Trial Court at Alipore. The learned Lower Appellate Court did not consider the application for condonation of delay and rejected the prayer for ad interim stay of the operation of the order No. 2 dated 26/07/1994. This order was passed on 3/10/1994 by the learned District Judge in Misc. Appeal No. 408 / 94.;