- (1.) This is a time barred appeal. There was 505 days delay in filing this appeal. An application has been filed praying for condonation of delay. While the said application was taken up for consideration, we have gone through the order impugned for ascertaining prima-facie the merit of this appeal. While doing so we find that the probate suit filed by the appellant was dismissed for noncompliance of the court's order. By a previous order dated 11th March, 2013 the appellant was directed to put in the requisites for citation. Such requisites were not put in by the appellant within the date which was fixed for the said purpose. As a result, on 17th April, 2014 the learned District Judge directed the appellant to show cause as to why the said probate proceeding will not be dismissed for not taking steps in compliance with the earlier order passed by the learned District Judge on 11th March, 2014. Even thereafter, no step was taken for showing cause as to what prevented the appellant from taking steps in compliance of the court's earlier order. As a result on 29th May, 2014 the probate proceeding was dismissed for non-compliance of the court's order vide order no. 6.
(2.) The legality of the said order passed by the learned District Judge on 29th May, 2014 is under challenge in this appeal. No doubt an appeal is maintainable for challenging the said order in view of the provision contained in Section 299 of the Indian Succession Act, 1975; but the remedy by way of appeal will become illusory before this Court in view of the Full Bench decision of this Hon'ble Court in the case of Bimla Devi -vsAghore Chandra Mallick, 1975 AIR(Cal) 80 wherein it was held as follows : "Para - 15 : The relevance of the obser-vations of Mr. Mukerji, J. quoted above to the instant reference is apparent. When an application under Order 21 Rule 90 has been dismissed for default and an appeal is preferred from the order of dismissal, the Appellate Court would have to go by the record as it stands and to determine upon the materials that are on record where the appellant was prevented by sufficient cause from appearing before the Trial Court. It is obvious that the Appellate Court would have no material on record to render a decision on the sufficiency of the cause and can give no relief to the appellant." Under such circumstances, it was held by the Full Bench of this Hon'ble Court that the affected party has to approach the very same court with an application under Section 151 of the Code of Civil Procedure seeking restoration of the suit by explaining the reason which prevented the appellant from taking appropriate steps in compliance with the direction regarding service of citation.
(3.) In view of the observation made hereinabove, we are of the view that practically no relief which the appellant has claimed in this appeal can be granted here and as such, we decline to condone the delay in filing this appeal. It is made clear that this order will not preclude the appellant from seeking appropriate relief before the learned Trial Court in the light of the observation made hereinabove. The appeal is, thus, dismissed. Consequently, the applications filed in connection with this appeal are also dismissed.;