Shivakant Prasad, J. - (1.) This appeal is directed against the judgement and decree in Title Appeal No. 9 of 2009 passed by the Additional District Judge, Basirhat, North- 24 Parganas affirming the judgement and decree in Partition Suit being Title Suit No. 40 of 2002, inter alia, on the ground that the learned Appellate Court below failed to consider the circumstances upon which the appeal was preferred against the final decree of the Trial Court and that the Trial Court's failure to appoint legal guardian as well as Court guardian against the minor Appellants No. 3 and 4 at the time of delivery of preliminary and final decree in the said partition suit who were minors at the relevant point of time.
(2.) It is submitted on behalf of the appellants that the learned Appellate Court below should have considered that the respondent nos. 1 to 4 acted fraud upon the Trial Court by adding appellant nos. 3 and 4 as major though they were minors at the time of addition and thus the judgement and decree of the Trial Court has been vitiated with act of fraud and not sustainable in law and accordingly, the appellants have prayed for setting aside the judgement and decree impugned. The learned counsel for the appellants has also contended that the learned Appellate Court below has only considered the question of maintainability of the appeal in the light of Section 97 of the Civil Procedure Code without adhering to the exceptional circumstances where the judiciary can act beyond Section 97 of the Civil Procedure Code as in the present case only for the purpose of equity and for doing justice and accordingly, the appellants have prayed for setting aside of the judgement and decree appealed against before this Court.
(3.) The learned counsel for the appellants has also taken a ground that the learned Appellate Court has failed to consider the illegalities of the Trial Court in passing the judgement and decree in the preliminary form and non-granting of an adjournment for bringing final order of revisional case in C.O. No. 3094 of 2008 pending in the Hon'ble High Court moved against Order No. 50 dated June 10, 2008 in Title Suit No. 40 of 2002.;