Dr. Rajashree Ray Bandyopadhyay vs Dr. Partha Sarathi Roy on 24 July, 2026

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    Calcutta High Court (Appellete Side)

    Dr. Rajashree Ray Bandyopadhyay vs Dr. Partha Sarathi Roy on 24 July, 2026

                                                                        2026:CHC-AS:1111
                     IN THE HIGH COURT AT CALCUTTA
                       CIVIL REVISIONAL JURISDICTION
                                APPELLATE SIDE
    Present:-
    HON'BLE JUSTICE CHAITALI CHATTERJEE DAS.
    
                             CO 1616 OF 2022
                                  WITH
                              CAN 5 OF 2025
                    DR. RAJASHREE RAY BANDYOPADHYAY
                                    VS
                            DR. PARTHA SARATHI ROY
                                  WITH
                            CO 1920 OF 2022
                           DR. PARTHA SARATHI ROY
                                   VS
                     DR. RAJASHREE RAY BANDYOPADHYAY
                                   WITH
                             CO 1921 OF 2022
                         DR. PARTHA SARATHI ROY
                                   VS
                     DR. RAJASHREE RAY BANDYOPADHYAY
                                  WITH
                            CO 2316 OF 2022
                    DR. RAJASHREE RAY BANDYOPADHYAY
                                   VS
                         DR. PARTHA SARATHI ROY
    
    For the Petitioner/
    Dr. Rajashree Ray
    Bandyopadhyay
    in CO 1616 of 2022
    and 2316 of 2022 and         :   Mr. Sayantan Bose, Adv.
    opposite party in                Mr. Sarbajit Mukherjee, Adv.
    CO 1920 of 2022                  Ms. Priyanka Gope, Adv.
    and CO 1921 of 2022
    
    For the petitioner/
    Dr. Partha Sarathi Ray in
    CO 1920 of 2022              :    Mr. Saurabh Guhathakurata, Adv.
    And CO 1921 of 2022               Mr. Abhratanu Sarkar, Adv.
    For the opposite party
    In CO 1616 of 2022
    And CO 2316 of 2022
    
    
    
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          Reserved On                   : 16.06.2026
         Judgement On                   : 24.07.2026
          Uploaded On                   :   24.07.2026
    
    
    
      CHAITALI CHATTERJEE DAS, J. :-
    
    1. Four revisional applications under article 227 of the Constitution of India filed
    
      by the petitioner, Dr. Partha Sarathti Roy and Dr. Rajashree Roy
    
      Bandopadhyay against a composite order dated 1st June 2022, passed by the
    
      learned Civil Judge (Senior Division), 2nd Court at Barasat in Title suit no.
    
      669 of 2017 whereby all the applications filed, out which two applications
    
      under section 151 by the original plaintiff mother as well as by            present
    
      petitioner for restoration of possession, one application under order 39 Rule 7
    
      for appointment of Advocate Commissioner and an application for amendment
    
      of plaint   under Order VI Rule 17 of CPC filed by the brother Dr. Partha
    
      Sarathi Roy were disposed of. On the joint prayer made by the parties all the
    
      revisional applications are heard analogously .
    
    2. The fact of the case in a nutshell is that a long-term lease in respect of the suit
    
      premises was granted on 26 December 1975 jointly in favour of late Dr.
    
      Dwijendra Kumar Roy and late Dr. Urmila Roy and they constructed a building
    
      over the same who are the parents of the present parties to the proceeding. Dr.
    
      Dwijendra Kumar Roy died on 11th January, 2017 leaving behind him his wife,
    
      Dr Urmila Roy since deceased and present parties        as his legal heirs. Prior to
    
      his death Dr. Roy executed a will on 7 September 2016, bequeathing his 50%
    
      share in the said property in favour of his daughter and a probate proceeding
    
      in respect of the same is pending presently being contested by the brother. Dr.
    
      Urmila Roy also on the same date, executed a will bequeathing her 50% share
    
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      in the property in favour of the respondent/daughter. On 3rd November 2016

    Dr. Urmila Ray revoked earlier will dated 7th September, 2016 and executed a

    fresh will on 27th January, 2017 and registered a codicil of the said Will

    SPONSORED

    registered on 3rd November 2016 whereby she bequeathed her 50% share in

    the property in favour of her son. According to the plaintiff /mother during

    April 2017, the daughter with her family members shifted from UK and came

    to the house of the mother at 19 Creek Row in the middle of 2014 and started

    living there with her family and after death of her father left the house which

    the plaintiff mother came to learn that she in fact shifted to their Salt Lake

    property behind her back and entered into the second floor which were being

    used by the plaintiff/mother and used to keep under lock and key. The

    plaintiff further came to learn that the daughter has inducted one Sunny

    Sharma beyond her knowledge in respect of the first floor .On 26.4.2017 when

    the plaintiff went to visit the suit property she was denied entry by the

    domestic help of her daughter .Over the incident she also lodged one GD

    before the Bidhannagar police station and further instituted a civil suit in the

    year 2017 against the opposite party/daughter in which the present petitioner

    was impleaded as proforma defendant number 2.The suit was contested by

    the daughter by filing written statement denying the allegations levelled

    against her by her mother .

    3. By virtue of an order dated 7th August 2017, an ad- interim injunction order

    was passed by the Learned Trial Court in favour of the mother on an

    application filed by the mother under order 39 Rule 1 & 2 of CPC . The

    opposite party /daughter also filed an application under order 39 Rule 1 and 2

    against the mother on 15.3.2018 and the Court passed an order of status-

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    2026:CHC-AS:1111
    quo with regard to the nature character and possession of the suit premises.

    Since the said interim order as granted in favour of the plaintiff /mother was

    alleged to be violated she further filed an application under Order 39 Rule 2A

    of the Civil Procedure Code. An application under Section 151 of the Code of

    Civil Procedure was filed on 29th March, 2018 in the suit by the daughter Dr.

    Rajyashree Ray Bandopadhyay and on 28th June, 2018 such application was

    disposed of with a direction to the IC, Bidhannagar PS to remove the padlocks

    of certain rooms of the suit premises and to handover certain movable

    properties to the respondent. The respondent was also permitted to use,

    occupy and reside in certain portions of the same premises and rest of the

    portions were directed to be kept under possession of late Dr. Urmila Ray and

    her son.

    4. Dr. Urmila Ray filed a revisional application being C.O 2204 of 2018

    challenging the said order and by virtue of an order dated 27th July, 2018

    passed by the Learned Co-ordinate Bench it was set aside. It is alleged by the

    petitioner Dr. Partha Sarathi Roy that on 10 July 2018, the respondent

    through police help with her men and agent ransacked the whole building in

    the suit premises, looted valuables lying, and tortured her mother who was

    then aged about 84 years and was very ill. However, the police put new

    padlocks in certain rooms under occupation and possession of the petitioner

    and his mother. On 2nd August, 2018 further application was filed with a

    prayer for necessary direction to the IC Bidhannagar PS to restore possession

    of rooms and articles in terms of the order dated 28th June, 2018. On 6th

    October 2018, the original plaintiff/ mother, Dr Urmila Ray expired leaving

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    behind her last Will and testament dated 22nd May, 2017, which is a

    holographic Bengali Will and duly registered.

    5. On 18 April 2019, when the present petitioner returned to India, his entry was

    refused to the premises by the respondent and her men and servants.

    Subsequently on 22nd July 2019, also he tried to enter into the suit premise

    but he was severely assaulted and police refused to accept the complaint of the

    petitioner. After demise of the mother, both the petitioner as well as the

    respondent filed respective application for substitution in the title suit and by

    an order dated 6th March, 2020 the application of the respondent for

    substitution in place of deceased plaintiff was rejected and the application of

    the petitioner was allowed. On 16th December, 2020 the plaintiff filed an

    application under Order 6, Rule 17 of the Code of Civil Procedure for

    amendment of the plaint and both the application for amendment and the

    application for restoration of possession filed by the original plaintiff were fixed

    for hearing on 8th February 2021. All the applications were heard together and

    by the order impugned allowed the application for amendment of plaint and

    application for appointment of Advocate commissioner and rejected the

    remaining two applications under 151 filed by the original plaintiff and by the

    substituted plaintiff for restoration of possession .The said order has given rise

    to 4 revisional applications which are as follows; CO 1616 OF 2022, CO 2316

    OF 2022, CO 1920 OF 2022 and CO 1921 OF 2022. This Court also after

    hearing the matter analogously passed the order in the following manner.

    C.O 1616 OF 2022

    6. The challenge in the revisional application filed against the portion of the order

    no. 5 dated June, 2022 passed by the learned 2nd Civil Judge (Senior Division)

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    Barasat in Title Suit no. 669 of 2017 to the extent that the said order allowed

    an application filed by the substituted plaintiff for local inspection under order

    XXXIX Rule 7 of the Code of Civil Procedure, 1908. It is the contention of the

    learned advocate representing the present petitioner/defendant of the suit that

    in the schedule to the application for local inspection, the substituted plaintiff

    being the opposite party herein, Dr Partha Sarathi Roy sought for the

    commissioner to be appointed for noting of all points which were allowed by

    the learned court and not sustainable on the ground as follows:-

    I) The original plaintiff on the date of filing of the suit was not in actual

    physical possession of any part or portion of the suit property and the

    statement was made in various paragraphs of the plaint. She complained of

    not getting access to the suit property on 26th April 2017, when she tried to

    enter into the suit property. It is admitted that the second floor of the suit

    property was let out by the present petitioner to a tenant. Therefore, it was

    incumbent upon the original plaintiff to seek for restoration or recovery of

    possession in the suit and in absence of such a prayer the suit itself is hit by

    Section 34 of the Specific Relief Act, 1963.

    II) It is argued on behalf of the petitioner that it is now settled that unless a

    recovery of possession is prayed for admittedly is not in possession of the

    property the suit itself is not maintainable and in this regard put reliance on

    the decision of the Hon’ble Supreme Court of India in the case of Union of

    India versus Ibrahim Uddin and Anr. reported in1. This proposition was

    1
    (2012) 8 SCC 148

    Page 6 of 33
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    also held by the Supreme Court in its judgement reported in, Venkata Raja

    and others versus Vidyane Doureradjaperumal2.

    III). It is further the contention of the learned Counsel that on the date of filing

    of the suit the plaintiff was not in possession of the suit property which can be

    found from the general diaries lodged by the original plaintiff with the Bidhan

    Nagar Police Station, which was submitted in the affidavit in opposition filed

    by the present opposite party/plaintiff in this revisional application. Therefore,

    apparently no relief of possession being sought either by the original plaintiff

    or the substituted plaintiff hence the suit itself is not maintainable. Therefore,

    as per settled law, when a final relief in the suit cannot be passed, no

    interlocutory order can be made in favour of the plaintiff. Admittedly, the relief

    of local inspection sought by the substituted plaintiff opposite party, herein is

    an interlocutory relief, and the same cannot be granted since the final relief of

    the suit itself is not maintainable. The learned court allowed the said

    application whereby the local inspection on the points contended in the

    schedule to the application which otherwise cannot be sustained were also

    allowed.

    IV). The fourth argument advanced is that a suit for permanent injunction by

    one co-sharer against other co-sharer from exercising right over any part of the

    property in joint possession without claiming partition is not maintainable. In

    this regard, reliance was put in the judgement of T. Ramalingeswara Rao

    (Dead) through Lrs and another versus N. Madhava Rao and others3, for

    2
    (2014) 14 SCC 502
    3
    (2019) 4 SCC 608

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    relied upon Bachaspati Bhattacharya & Ors. Versus Smt. Meera

    Bhattacharjee & Ors4.

    V). The further contention made before this court is that without prejudice to

    the averment what it is contained that the application for local inspection filed

    by the substituted plaintiff could not have been allowed as the same amounts

    to nothing but a mere attempt to fish out evidence. An analysis of the points

    on which the local inspection is sought would make it apparent that the real

    purpose of the application is to ascertain the possession and occupation and

    occupancy of the suit property as on the date of the filing of the application for

    local inspection. The attempt of the substituted plaintiff is really to gain

    information by way of holding the local inspection to be used in collateral

    proceedings under Order XXXIX, Rule 2A filed by the substituted plaintiff

    alleging violation of an order of injunction passed by the learned court below.

    The application under Order XXXIX Rule 7 of the Code of Civil Procedure,

    1908 cannot be used to fish out or collect evidence and support of the relief

    claimed in the case. In this regard, Reliance is placed on the judgement of the

    Hon’ble Supreme Court of India in the case of Padam Sen and Anr vs. State

    of Uttar Pradesh reported in5 and The Institution of Engineers (India) &

    Anr. Versus Bishnu pada Bag & Anr6.

    7. Accordingly submitted that in view of the aforesaid circumstances , it is clear

    that the portion of the order impugned by which the application filed by the

    substitute plaintiff/opposite under Order XXXIX, Rule 7 Code of Civil

    Procedure, 1908 as allowed should be set aside.

    4
    AIR 2019 SC 1777
    5
    AIR 1961 SC 218
    6
    AIR 1978 Calcutta 296

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    8. Per Contra learned, advocate, representing the opposite party raised objection

    and took the specific points as to why the prayer of the petitioner in this

    revisional application should not be entertained The first point raised that the

    joint possession of the property as mentioned in the plaint is also admitted by

    the defendant/petitioner in her written statement and counterclaim. The

    mother of the opposite party, original plaintiff filed an application under Order

    XXXIX, Rule 1 and 2 read with section 151 of the Code of Civil Procedure for

    temporary injunction and the learned Court vide order dated 7.8.2017,

    restrained the present petitioner in making or creating any disturbance in

    peaceful possession of the suit property by the original plaintiff. The said entry

    made was validated by the present petitioner for which a proceeding under

    Order XXXIX, Rule 2A of the Civil Procedure Code is pending, and the

    petitioner also filed an application under Order XXXIX, Rule 4 of the Civil

    Procedure Code. Upon contested hearing of the injunction application and

    petition filed under XXXIX, Rule 4 of CPC, the learned Court vide order dated

    15th March, 2018 directed both the parties to maintain status quo as regards,

    nature, character and possession in respect of the suit property, as on the date

    till the disposal of the suit. The said proceeding was never challenged by the

    petitioner and it attains finality. After that petition was filed with the petitioner

    under Section 151 on 3.4.2018 for certain directions and to remove her

    belongings in the suit property and this itself, proves that the petitioner/sister

    was not in possession of the suit property, and this petition was allowed by

    the order dated 28.6.2018, which was subsequently set aside by the High

    Court in CO no. 2204 of 2018.

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    9. During the interregnum period, the petitioner illegally and unauthorisedly

    possessed the suit property without giving any undertaking so directed by the

    learned court. After the petitioner let out the entire ground floor for commercial

    purpose for which several directions passed by the court to stop such

    commercial activities. In order to assess the damage caused by the petitioner

    in the suit property and the present possession of the suit property, the local

    inspection is required under Order XXXIX Rule 7 of the civil procedure court,

    and hence no interference is required in respect of the order passed by the

    learned court whereby the petition is allowed. The learned advocate relied

    upon the decision reported in Padam Sen and anr. versus State of Uttar

    Pradesh7. Allahabad Bank versus Sourendranath Shaw & Anr8. Nitindra

    Nath Roy Chowdhury & Ors versus Subhash Chandra Kar9.

    10. Heard the rival contentions of both the learned advocates. The materials

    placed on record and the pleadings made by the parties prior to his demise, Dr

    Dwijendra Kumar Ray executed a Will on 7.9.2016, bequeathing his undivided

    50% share in the suit property in favour of his only daughter that is the

    petitioner herein ,now pending for grant of probate being contested by the

    present opposite party/brother.

    11. The record further disclose that Dr Urmila Ray also executed a will on the

    same date bequeathing her 50% share in the same property in favour of the

    present petitioner, but later on, she revoked her will executed on 7.9.2016 and

    further executed a will and a codicil whereby she bequeathed her 50% in

    favour of the present opposite party. The probate proceeding in connection

    7
    AIR 1961 SC 218
    8
    AIR 1997 Cal 80
    9
    AIR 1981 Cal 319

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    with that will is also pending before the concerned court. Dr Urmila Roy during

    her lifetime filed the suit against her daughter and the son was made as pro

    forma defendant. During her lifetime, she also prayed for an injunction order,

    which was initially granted directing the parties to maintain status quo in

    respect of nature, character, as well as possession of the suit property. The

    order was subsequently modified in terms of the prayer made by the present

    petitioner and taking the assistance of the police officers of Bidhannagar North

    took possession of certain portion of the premises, was challenged before the

    High Court and the said order was set aside. The mother filed an application

    under section 151 of CPC for restoration of possession of certain portion of the

    premises and taking advantage of the judicial order, the petitioner, admittedly

    took possession of certain portion of the suit property and in terms of the

    subsequent order of the learned coordinate bench, that initial order lost its

    force. The mother expired on 6.10.2018 and she lodged several complaints

    over some illegal construction raised by the present petitioner during her

    lifetime. The present opposite party and his family members admittedly are

    resident of United Kingdom but claimed that whenever they visit Kolkata, they

    used to stay in the suit property. The opposite party, after demise of his

    mother being appointed as an executor to the will of his mother filed

    application to be transposed as plaintiff. The prayer was allowed and affirmed

    by this court on challenge . The opposite party in the capacity of an executor

    also filed an application under Order 39 Rule 7 of Code of Civil procedure for

    inspection of the portion which has been retained by the present petitioner , in

    order to ascertain the damage caused by her in the property. The brother

    /opposite party herein in the writ petition prayed for a direction commanding

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    the police authorities to enquire, investigate and register cases based upon the

    complaints lodged by him, as well as his mother on several occasions and no

    action was taken over the same. The application filed under Order XXXIX, Rule

    7 CPC was made for appointing advocate commissioner and the schedule

    points for local inspection were as follows;

    i) to go to the premises number DB1, sector-I, Salt
    Lake city, Kolkata 700064, being the suit property
    within the jurisdiction of Police Station, Bidhan
    Nagar(north) and ascertain as to whether the portion
    of the such property in map annexed to the petition is
    kept under lock and key, and if so, to direct the
    learned commissioner to see the locks and keep the
    same as such.

    (ii) if it is found that those portions are not under lock
    and key, then to note how those portions are being
    used and what are the articles in the said portion and
    take note of those articles.

    iii)To ascertain in the mode of user of the ground floor,
    of the suit property from a part of each, the plaintiff
    has been dispossessed by the present petitioner on
    10th July 2018, with the police assistance for which
    application for restoration of possession is pending.

    iv)To note all other local features, as would be pointed
    out by the parties in the locale.

    12. The judgement relied upon in this regard in Union of India versus Ibrahim

    Uddin and another (Supra) it was held that section 34 of Specific Relief Act,

    1963 provides that courts have the discretion as to declaration of status or

    right, however, it carves out an exception that a court shall not make any such

    declaration of status or right where the complainant, being able to seek further

    relief than mere declaration of title, omits to do so. The Hon’ble Supreme
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    Court took note of Ram Saran versus Ganga Devi10 where it was held

    categorically that the suit seeking for declaration of title of ownership, but

    where possession is not sought is hit by the Proviso of Section 34 of the

    Specific Relief Act 1963, and thus, not maintainable.

    13. In Vinay Krishna versus Keshav Chandra11, the Hon’ble Apex court dealt

    with a similar issue where the plaintiff was not in exclusive possession of

    property and had filed a suit seeking declaration of title of ownership. Similar

    view has been reiterated observing that the suit was not maintainable, if

    barred by the proviso to section 34 of the Specific Relief Act. Accordingly held

    that in view of the above, the law becomes crystal clear that it is not

    permissible to claim the relief of declaration without seeking consequential

    relief.

    14. In the decision of Venkataraja and others (Supra) this principal was

    reiterated in para 24 that “a mere declaratory decree remains non-executable in

    most cases generally. However, there is no prohibition upon a party from

    seeking and amendment in the plaint to include the unsought relief, provided

    that it is saved by limitation. However, it is obligatory on the part of the

    defendant to raise the issue at an earliest”.

    15. All the above cases cited by the parties relates to declaratory suits not by a

    person transposed as plaintiff in the capacity of an executor. In terms of

    section 211 of the Indian Succession Act after demise of the testator the entire

    property in the will vests upon the executor and he is given ample power to

    protect the property like the owner till the probate is obtained and the

    10
    (1973) 2 SCC 60
    11
    AIR 1993 SC 957

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    property is administered to the legatee .In addition the instant suit property is

    a joint property and the parents of the parties were joint owners and so long

    the probate of the wills executed by the parents are made, the status of parties

    being the only legal heirs of their parents are co-sharer of the entire property.

    The original plaintiff filed the suit for declaration when she had the 50%

    ownership and also entitled to have her 1/3rd share in respect of 50% of her

    husband’s share and hence was a co sharer.

    16. It is settled proposition of law that in a joint and undivided property all the

    co-owners have equal share in each part of the property .However no prayer for

    restoration of possession was made under Section 144 Cr.P.C. Consequently,

    the petition filed under section 151 cpc was not entertained for that relief.

    17. In the case of Padam Sen and Anr vs State of Uttar Pradesh (supra) as

    relied upon both the Learned Counsels,it was observed in para 13 that “Rule 7

    of Order XXXIX empowers the court ,on an application of any party to a suit ,to

    make an order for the detention, preservation or inspection of any property

    which is the subject matter of the suit or as to which any question may arise

    therein”. In that case the objection raised regarding the account Book which

    was held to be not “property” which were the subject matter of suit nor such

    that about them a question could rise in the suit.

    18. In the instant case the original plaintiff prayed for a decree of declaration

    declaring her joint ownership to the extent of ½ +1/3 in respect of the suit

    property against her daughter who after demise of her father inherited her

    undivided share in accordance with the rule of succession and became the

    joint owners with her mother and brother and it is settled law that the co-

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    sharer has right in each every part of the joint property until divided by metes

    and bound.

    19. The record further disclose that an order of injunction was passed on the

    prayer made by the original owner/mother directing the parties to maintain

    status quo with regard to the nature character and possession of the suit

    property .This order was later on modified and it is the specific case of the

    petitioner/sister that on the strength of a judicial order she was allowed to

    take possession of certain portion of the suit property .That modified order

    was later on set aside by the Learned Single Bench .Accordingly the petition

    under section 151 CPC was filed during the life time of the mother to restore

    such possession which was again filed by the brother later on after being

    transposed as plaintiff .The Learned Court rejected both the applications

    against which the brother has filed two revisional applications which have

    been dealt with by this court hereinafter .

    20. In the backdrop of the aforesaid factual matrix ,particularly in view of the

    High court’s findings validating the allegations of unauthorized occupation

    and construction ,the executor ,being a legal obligation to preserve and protect

    the estate of the testatrix ,is entitled to seek the appointment of an advocate

    commissioner to inspect the property ,ascertain the nature and extent of the

    damage caused by the sister and report on whether physical possession of

    any portion of the property has been parted with or not. These facts

    unequivocally manifest that even if the argument of the Learned Counsel for

    the respondent herein is accepted that a suit for declaration without praying

    for recovery of possession is not maintainable, will not be an issue at this stage

    in the instant case . But the Learned trial court refused the prayer on the

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    ground that it cannot be ascertained as to the status of the position when the

    order of statusquo was passed. This court though is unable to accept such

    ground for refusal in view of the aforesaid discussion.

    21. Accordingly the instant revisional application filed by the sister Dr.

    Rajyashree Ray Bandyopadhyay being CO 1616 OF 2022 is dismissed .The

    order passed by the Learned trial court allowing the application for appointing

    advocate commissioner stands affirmed .

    C.O 1920 OF 2022 /C.O 1921 of 2022

    22. The above revisional applications were filed by the brother Dr. Partha Sarathi

    Roy against the portion of the order dismissing the applications filed by both

    the original plaintiff and the transposed plaintiff under Section 151 of CPC,

    refusing the prayer for restoration of possession.

    23. The learned advocate appearing for the petitioner submitted, during her

    lifetime, the mother had lodged several complaints against her daughter/

    respondent but police authorities failed to take appropriate steps to investigate

    or pursue the complaints. A Writ petition had to be filed alleging inaction on

    the part of the police authorities, as well as against the Bidhannagar Municipal

    Corporation in respect of an alleged illegal construction raised at the suit

    premises by the sister in collusion with a local Developer.

    24. By virtue of order dated 21.2.2022 and 12.5.2022, the Learned court

    directed the Municipal Corporation to conduct inspection of the same and to

    take consequential steps. In course of hearing as called for she admitted of

    making numerous alternations beyond the scope of sanctioned plan and she

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    was directed to demolish the illegal unauthorised construction within a period

    of two weeks and to stop all sorts of commercial activities from the said

    premises. It is the specific contention that taking advantage of the order

    passed in the suit, giving access to the respondent on 28.6.2018 the

    respondent did all sorts of misdeed however the said order was set aside by

    the High Court holding that restoration of possession always has to be

    tangible physical possession and there cannot be any restoration of notional

    or joint possession of the parties. But the legal possession of the mother was

    taken by the respondent with the help of the police during the interregnum

    period and for that reason, the application under 151 of the Code of Civil

    Procedure was filed by her and after death of the mother, the petitioner being

    transposed as plaintiff prayed for restoration of possession.

    25. It is the further contention of the Learned Advocate that in legal terms

    restitution is used in three senses. i) returned, and restoration of some specific

    thing ii) compensation for such wrong doing iii) compensation for benefits

    derived from such wrongdoing. It is also salutary principal that restitution is

    based on the legal maxim ‘actus curiae neminem gravabit’ means that an act

    of court shall prejudice no man. This principal is recognised under Section 144

    of the Code of Civil Procedure and the court can apply the same under Section

    151 of the Code.

    26. It is further contended that the mother of the petitioner was all along in

    possession of the suit property till it was taken by the order of the learned

    court, which was subsequently set aside and the same can be maintained by

    the petitioner after his transposition as plaintiff in the suit. Therefore, it was

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    the bounden duty of the learned court below to restore the possession of the

    suit property as it was there before illegally taken by the opposite party. In this

    regard relied upon the decision reported in Shibesh Paul Steel Authority of

    India Ltd. and other12. Another decision reported in, The State of West

    Bengal versus M/s Bansilal Leisure Parks Limited and Anr13.

    27. It is the specific contention of the learned advocate that the interim order

    was violated for which petition had been filed by the original plaintiff under

    Order XXXIX Rule 2A of the Civil Procedure Code. After contested hearing of

    the injunction application and the Order XXXIX, Rule 4 of the Civil Procedure

    Code, the learned court vide order dated 15th March 2018 directed both the

    parties to maintain status quo as regard, nature, character, and possession in

    respect of the suit property and such order has never challenged by the

    present opposite party and it attains finality. After that the application under

    Section 151 of CPC was filed to enable her to remove her belongings and filing

    of such petition clearly proves that the respondent was not in possession of the

    property. The defendant respondent let out the entire ground floor for which

    several directions passed by this court to stop such commercial activities and

    hence the petition had to be filed for restoration possession as it was at the

    time of filing of the suit and the learned court ought to have considered the

    entire circumstances without refusing such prayer mechanically, and without

    exercising judicious mind. The petitioner further relies on the decision

    reported in (Meera Chauhan versus Harsh Bishnoi and another14, (Sujit

    12
    (2010) 3 CHN Cal 582
    13
    (2019) 4 CHN Cal 582
    14
    (2007) 12 SCC 201

    Page 18 of 33
    2026:CHC-AS:1111
    Pal versus Praveen Kumar Sun and others15. Accordingly, prays for such

    order.

    28. Per contra the learned advocate representing the opposite party argued that

    the original plaintiff prayed for restoration of possession from the portion of

    the suit premises from which she had allegedly been dispossessed in terms of

    the order dated 28th June 2018. It is settled now that when specific remedy

    available under another provision of code and the original order passed on 15th

    March 2018 gets modified by directing the plaintiff and the defendant no. 1 to

    maintain status quo as regard nature and character and possession in respect

    of the property as on 15th March 2018, till disposal of the suit. On 28th June,

    2018, the inspector in-charge was directed to remove the padlocks of various

    portions of the property as specified therein and pursuant to the judicial order

    such order was implemented on 10th July 2018. By the order passed by the

    High Court in C.O. no. 2204 of 2018, the said order was set aside, and after

    that, the plaintiff applied for restoration of possession as on the date of her

    dispossession pursued to the order dated 27th June, 2018 passed in the said

    suit. Therefore, the proper remedy for the original plaintiff in the instant case

    would have been to file an application under Section 144 of Code of Civil

    Procedure, 1908 which provides mechanism for restitution in case of alteration

    of a status in terms of an order passed by the Hon’ble Court, which were

    subsequently set aside, modified or varied. Therefore, the application under

    Section 151 of the Code of Civil Procedure, 1908 is not maintainable.

    15

    AIR 1986 Cal 220

    Page 19 of 33
    2026:CHC-AS:1111

    29. It is further argued that the admitted position is that the original plaintiff has

    since departed her life as on the date then the order impugned in the present

    civil revisional application was being passed, and such substituted plaintiff

    who claims to be an executor of an alleged will cannot seek to pursue the said

    application. Reliance placed by the learned counsel appearing on behalf of the

    petitioner on the provision of Order 2 Rule 5 of the Code of Civil Procedure,

    1908 is completely misconceived, which has no manner of application to the

    present suit.

    30. The learned counsel distinguished the judgement relied upon by the

    petitioner as the petitioner sought for that it was open to the original plaint to

    seek relief under Section 151 of the Code of Civil Procedure, 1908 since it was

    possible for a temporary mandatory injunction being passed on an application

    under Section 151 thereof while there is no quarrel with the proposition that

    an order of temporary mandatory injunction can be made under Section 151 of

    the Code of Civil Procedure, 1908. Neither of the cases cited are concerned

    with the situation where the fact similar to those as of the instant suit. Both

    the judgements relied upon on behalf of the petitioner relates to a situation

    where the defendant dispossessed the plaintiff in spite of a subsisting order of

    injunction restraining the defendant from doing so. Neither the judgement

    aforesaid contemplate a situation where the alleged dispossession was

    pursuant to implementation of an order of court. It is further submitted by the

    learned counsel that the argument advanced on behalf of the petitioner that

    implementation of the order dated 27th June, 2018 by the inspector in charge

    of Bidhannagar Police Station on 10th July 2018, amount to violation of the

    Page 20 of 33
    2026:CHC-AS:1111
    order dated 15th March 2018 is thoroughly misconceived, and hence the

    instant revisional application deserves to be dismissed with cost.

    31. Heard the rival contentions of both the learned counsels. On perusal of

    materials on record as well as considering the submission advanced the facts

    which are found to be admitted that the suit premises jointly owned by the

    parents of the present parties of this revisional application and both of them

    executed respective Wills bequeathing their 50% share to the petitioner and

    the respondent, who are the brother and sister, respectively. The learned trial

    court considering both the injunction application passed the order on 15.3.

    2018, directed both the parties to maintain status quo as regard the

    possession of property. Fact remains such order was modified by the

    subsequent order directing the Bidhannagar PS to remove the pad lock of AC

    bedroom, personal study room, computer room, children’s room and the

    kitchen on the second floor and allowed the defendant/daughter to take all her

    belongings there from and allowed the defendant no 1 to occupy with all her

    belongings in only two bedrooms, which will be small in size compared to the

    kitchen in the second floor of the suit flat.

    32. The Learned Court further directed that in the event the defendant already

    enjoying such two bedrooms, she will not get any other bedrooms that is to say

    in total the defendant no. 1/present respondent can enjoy two small

    bedrooms, two toilets and bathroom and one small living room and the kitchen

    in the second floor of the suit flat. Direction was also given to the police station

    to remove the padlock of the said chamber in the ground floor of the flat and

    allowed the respondent to occupy the same and to see that public peace and

    Page 21 of 33
    2026:CHC-AS:1111
    tranquillity can be maintained. The remaining rooms in the second floor of the

    suit to be under lock and key as it was for the purpose of using by the plaintiff

    or the former defendant and the IC Bidhannagar was directed to handover

    keys to the plaintiff. Further direction given to the defendant no. 1 to file a

    written undertaking supported with an affidavit that she will not claim any

    equity in her favour in future in claiming exclusive or settled possession in

    respect of the rooms arranged by this order. This order was implemented by

    the police on 10 July 2018.

    33. The said order was set aside vide order dated 27.07.2018 with the

    observation that when restoration of possession is concerned, it is always to be

    tangible physical possession and there cannot be any restoration of notional or

    joint possession of the parties. During this entire period that is from the order

    of status quo passed by the learned trial court on 15. 3. 2018 till July 27,

    2018.

    34. Therefore, it is apparent that the police implemented the order on 10th July

    2018 after the order passed by the learned trial court to maintain status quo

    was modified on 28.6.2018, by giving specific direction to the Bidhan Nagar

    police to open the pad lock. That order was set aside on 27.7.2018 after

    implementation of the previous order handing over the possession over to the

    present respondent. The judgement relied on by the petitioner in Meera

    Chauhan (Supra) ,an application for injunction restraining the respondent no.

    2 from transferring, eliminating or encumbering was filed and an ex parte

    interim order of injunction was passed, but the order of interim injunction was

    granted against the respondent no. 2 from interfering with possession of

    Page 22 of 33
    2026:CHC-AS:1111
    respondent no. 1 in respect of the suit property. When the interim order of

    injunction was in force, the applicant purchased the property from respondent

    no. 2, and she was put into possession on the same date. Petition was filed

    against said police authorities claiming for dispossession during his absence.

    Praying for restoration of possession by respondent no. 1, a suit under section

    6 of Specific Relief Act was filed before the Civil Judge for restoration of

    possession and an application to that extent was filed by him under Section

    151 of Code of Civil Procedure on the allegation that he was dispossessed from

    the suit property during the pendency of the suit when interim order of

    injunction was in force. The Hon’ble Supreme Court observed that the

    question of possession at the relevant point of time, it would be appropriate to

    note that the order for restoration was passed by the trial court on an

    application under Section 151 of the Code of Civil Procedure. A question may

    arise whether such an application can be entertained by the court when

    specific provision under Order 39 of the Code of Civil Procedure has been

    made for grant of injunction in the form of mandatory order in exercise of

    power under the said order. It was held-

    “15. on a bare perusal of Section 151 CPC it cannot
    be said to be in dispute that Section 151 confers wide
    powers on the court to make such orders as maybe
    necessary for the ends of justice or to prevent abuse
    of the process of the court.

    16. The power of section 151 to pass order of
    injunction in the form of restoration of possession of
    the court is no more res integra now”

    Page 23 of 33

    2026:CHC-AS:1111

    17. In Manohar Lal Chopra versus Rai Bahadur
    Rao Raja Seth Hiralal
    AIR 1962 Supreme Court
    527 while dealing with the power of the court to pass
    orders for the ends of justice or to prevent the abuse
    of the process of the court, the Court held that the
    courts have an inherent jurisdiction to issue
    temporary order of injunction in the circumstances
    which are not covered under the provisions of order
    39 of the Code of Civil Procedure.”

    35. In the case of Sujit Pal (Supra) the opposite party made an application for

    temporary injunction, and the learned Judge passed an order of interim

    injunction, restraining the defendant from interfering with the possession of

    the Opposite Party of the said room, despite such injunction, the defendants in

    violation of the said order of injunction forcibly dispossessed the opposite party

    from the suit premises. An application under Order XXXIX Rule 2A CPC and

    under Section 151 of CPC was filed praying for mandatory injunction,

    restoring the possession of the opposite party of the said room with police help

    and such application was allowed directing restoration of possession of the

    room in the said premises with police help.. Being aggrieved by the impugned

    order, the petitioner preferred an appeal and filed the present application for

    an interim order of stay of operation of the said order. Argument was advanced

    on behalf of the petitioner challenging the jurisdiction of the learned judge to

    entertain an application under Section 151 of Civil Procedure Code for a

    temporary mandatory injunction for the restoration of possession to the

    opposite party of the said room. It was submitted by the learned advocate that

    there is express provision under Order XXXIX Rule 2A for a remedy for the

    violation of a temporary or interim injunction and court has no power to grant

    Page 24 of 33
    2026:CHC-AS:1111
    a temporary mandatory injunction in exercise of its inherent power. It was

    contented that the provision of order XXXIX Rule 2A is a provision for

    execution of an order for a temporary injunction, and that in case of

    disobedience of a temporary or interim injunction the only remedy of the

    aggrieved party is to avail himself of that provision. The Supreme Court took

    note of Manoharlal versus Seth Hiralal16 and held that- “the inherent power

    of the court as recognised under section 151 of the court is in addition to the

    power conferred on the court, under the provision of the code. All that the court is

    concerned is to prevent abuse of the process of court and to do justice by

    immediately intervening under circumstances, which require such intervention

    by the court”. It was held after taking note of Hari Nandan versus SN

    Pandita17, where the Allahabad High Court took the same view that “when a

    party has been dispossessed in disobedience of the order of injunction the court

    can in exercise of its inherent power pass such order for ends of Justice as

    would undo the wrong done to the aggrieved party.”

    36. In the present case, the question boils up as to whether at all, there was

    disobedience by the respondent in this case or not since the original order of

    maintaining statusquo passed by the court was modified granting permission

    to the police to remove the padlock and on the strength of a judicial order such

    order was implemented by the police and the possession was handed over to

    the respondent. The subsequent order of modification was set aside much after

    the possession was given to the respondent by virtue of a judicial order and

    therefore the above judgments are distinguishable factually and is not

    16
    AIR 1962 Supreme Court 527
    17
    AIR 1975 ALL 48

    Page 25 of 33
    2026:CHC-AS:1111
    applicable in the instant case, since there was no violation of order of

    temporary injunction or interim injunction. In such circumstances when the

    petitioner is claiming restoration of possession he ought to have come by filing

    Section 144 of the Code of Civil Procedure which is as follows;

    “144. Application for restitution

    1) where, and in so far as a decree or an order is
    varied or reversed in any Apple, revision or other
    proceeding, or is set aside or modified in any suit
    Institute for the purpose, the court, which passed the
    decree or order shall, on the application of any party
    entitled to any benefit by way of restitution or
    otherwise, cause such restitution to be made as will,
    so far as maybe, place the parties in the position
    which they would have occupied, but for such degree
    or order or such part there as has been varied,
    reversed, set aside or modified and for this purpose,
    the court may make any orders, including orders for
    the refund of costs, and for the payment of interest,
    damages, compensation, and mean profits, which are
    properly consequential on such variation, reversal,
    setting aside, or modification of the decree or order.

    [Explanation.–For the purposes of sub-section (1), the
    expression “Court which passed the decree or order”

    shall be deemed to include,

    (a) where the decree or order has been varied or
    reversed in exercise of appellate or revision
    jurisdiction, the Court of first instance;

    Page 26 of 33

    2026:CHC-AS:1111

    (b) where the decree or order has been set aside by a
    separate suit, the court of first instance which passed
    such decree or order.

    (c) where the Court of first instance has ceased to
    exist or has ceased to have jurisdiction to execute, it,
    the Court which, if the suit wherein the decree or
    order was passed were instituted at the time of
    making the application for restitution under this
    section, would have jurisdiction to try such suit.]

    (2) No suit shall be instituted for the purpose of
    obtaining any restitution or other relief which could be
    obtained by application under sub-section (1).”

    37. In the case of Vanshidhar Sharma versus state of Rajasthan and

    others18, the doctrine of restitution under Section 144 and 151 and its

    applicability was discussed. It was observed that-

    “17. It clearly transpires that Section 144 CPC
    applies to a situation wherein decree or order is
    varied or reversed in appeal, revision, or any other
    proceedings or is set aside or modified in any suit
    instituted for the purpose. The principle of restitution
    is that on the reversal of a decree, the law imposes an
    obligation on the party to the suit to receive the
    benefit of the decree to make restitution to the other
    party for what he has lost. The obligation arises
    automatically on the reversal or modification of the
    decree and necessarily carries with it. The right to
    restitution of all that has been done under the decree
    which has been set aside or an order is varied or
    reversed, and the court is making restitution is bound

    18
    (2019) 19 ACC 701

    Page 27 of 33
    2026:CHC-AS:1111
    to restore the parties, so far as they can be restored to
    the same position as they were in at the time when
    the court by its action had displaced them.”

    In the present fact and circumstances, she filed an application before the court

    after the order of interim injunction was passed and the court after hearing the

    parties passed the order which was implemented by the Bidhan Nagar Police

    official. Therefore, by no stretch of imagination, it can be said that the order of

    injunction was violated .If the subsequent order is construed as a modified

    order pursuant to which possession was restored to the sister ,and thereafter,

    upon the modified order being set aside the question of invoking the inherent

    jurisdiction of the court under Section 151 of the code of civil procedure

    does not arise .In such circumstances ,Section 151 CPC cannot be invoked to

    seek restoration of possession .

    38. The learned trial court after considering the submissions made by the

    learned advocates of both sides and considering the materials and record was

    also of the view that it has to be ascertained as to what the position was before

    the police had acted as per order passed by the court, is not possible at this

    stage accordingly rejected the said petition.

    In view of the discussions as made the question of exact position while

    passing of the interim order which was subsequently modified about the exact

    position at the time of passing of the original order becomes secondary but

    when it is evident that no order of interim injunction was violated and the

    entire action was done on the strength of a judicial order which was set aside

    after implementation of such order, it can be termed as violation of Court’s

    Page 28 of 33
    2026:CHC-AS:1111
    Order. Accordingly this court do not find any merit in the case for interference

    as the restoration of possession in this case cannot be allowed by exercising

    inherent power when alternative remedy is available.

    39. In C.O 1921 of 2022 filed by the present petitioner/son was the pro forma

    defendant in the suit filed by the mother and later on transposed as the

    plaintiff in place of his .After being transposed, he filed the petition under

    Section 151 of the Code of Civil Procedure with the further prayer directing the

    opposite party to makeover possession of all the floors of the suit property

    within a specific time limit and also to restore all household articles, furniture

    fixture and fittings.

    40. The Learned advocate appearing on his behalf tried to impress upon the

    court that it is an equivocally established that the respondent behind the back

    of the petitioner had entered into a development agreement with a developer,

    namely Rajiv Rajan Kumar, who with active aid and advice of the respondent

    dismantled the entire internal structure of the suit property and used the

    same for commercial and business purpose without any sanction and

    authority of the competent authority. At the instance of the petitioner by an

    order dated 21.02.2022 in W.P.A no. 2090 of 2022 coordinate bench directed

    Bidhan Nagar municipal Corporation to hear the parties to pass a reasoned

    order and in pursuance to such order the Bidhannagar municipal Corporation

    by an order dated 10.7.2023, directed demolition of the unauthorised

    structure ,directed without any sanctioned building plan and contravention of

    the provision of the West Bengal municipal Corporation act, 2006. An appeal

    was preferred by the respondent before the Hon’ble Division Bench and

    Page 29 of 33
    2026:CHC-AS:1111
    whereby on 26.2.2024, the order of the learned Single Judge was affirmed.

    Therefore, it is crystal clear that there was violation of the injunction order as

    the respondent has changed the nature and character of the suit property

    illegally and raised unauthorised construction in the suit property , and also

    changed the nature of the building from residential to commercial without any

    sanction or authority. Assuming the contention raised by him are correct but

    for that reason a proceeding under Order XXXIX Rule 2A of CPC has been

    initiated and these facts are not relevant to consider the subject matter of the

    revisional application.

    41. Similarly this court do not appreciate the submissions made by the Learned

    Counsel of the Respondent regarding applicability of the provision of order 2

    Rule 5 of the code of civil procedure, 1908 in the instant suit as the

    transposed plaintiff is an executor to the will of his mother and is also a

    legatee. It is specifically argued on her behalf that the proceeding filed under

    section 151 of the code is not maintainable for having a relief of restoration of

    possession but that can be claimed by taking appropriate recourse .It is

    admitted that on the strength of a judicial order she was given possession of

    certain portion and hence after such judicial order being set aside her

    possession becomes questionable and the present plaintiff in the capacity of an

    executor can very well maintain appropriate application for restoration of such

    possession. However as discussed thoroughly in C.O no. 1920 of 2022 and

    the same prayer being made this revisional application also cannot be allowed.

    Accordingly this revisional application being CO 1921 OF 2022S stands

    dismissed.

    Page 30 of 33

    2026:CHC-AS:1111
    C.O 2316 OF 2022

    42. This revisional application is filed by Dr. Rajashree Roy Bandopadhyay

    against her brother challenging the portion of the common judgement dated 1st

    June, 2022 in T.S no. 669/2917 whereby an application under Order VI Rule

    17 of CPC was allowed. It is the case of the petitioner that after demise of the

    original plaintiff the present opposite party as an executor to the last will as

    alleged of their mother Late Urmila Roy applied to be transposed as plaintiff

    and the same was allowed which was challenged before this court by the

    petitioner being perverse .After being transposed the opposite party filed this

    application for amendment of the plaint which practically would change the

    nature and character of the suit as he is now praying for declaration of his

    right title and interest in respect of the suit property against the present

    petitioner which is not sustainable in the eye of law .

    43. The Learned Advocate appearing on behalf of the opposite party on the

    contrary argued that the four points raised by filing such amendment

    application are necessary for determining real controversy between the parties

    and formal in nature and in no way will destroy the basic structure of the suit.

    44. On perusal of the application filed under Order VI Rule 17 of the Code of

    Civil Procedure, 1908 it appears that the proposed schedule of amendment

    prayed for as follows;

    “1. In para 4 of the plaint after the last sentence “On
    death of Original plaintiff and before the order of
    transposition, the transposed plaintiff duly applied for
    probate of the Will which having been rendered
    contentious now pends before learned 1st Court of

    Page 31 of 33
    2026:CHC-AS:1111
    Additional District Judge at Barasat being numbered as
    OS 44/2019″. This sentence be inserted

    2. In para 8 of the plaint after the last word “earlier”,
    “even through as per statement made earlier in para 4
    of the plaint, the alleged will allegedly made by Dr.
    Urmila Roy stood revoked followed by a holographic
    Will”. Be inserted

    3. In para 9 of the plant at page 8 in fourth line after the
    word “absolutely” “and on the death of Dr. Urmila Roy
    transposed plaintiff is entitled to ½ + 2/3rd of balance
    half of the property total 5/6th share of the whole
    property” be inserted.

    4. In the prayer (a) second line “½+ 1/3rd” will be
    deleted “5/6th share” will be inserted.

    5. In the prayer (b) in fourth line after the words “suit
    property by the” “transposed” be inserted, and in same
    line after the word “Plaintiff” “and also proforma
    defendant” be deleted.”

    45. Therefore the above proposed amendment disclose that the opposite party

    after being transposed as plaintiff has tried to amend the plaint by claiming

    his own share inherited after demise of their mother in accordance with the

    law of succession . The law in this regard is very clear that a transposed

    plaintiff cannot exert any other point than what was claimed by the original

    owner. The opposite party was not substituted in his place but transposed as

    an executor and the entire suit property vests in him. He can take all such

    steps to preserve and protect the interest of the original plaintiff but cannot

    prayed anything in excess which would be beneficial for him in his personal

    capacity though in this case the opposite party is the legatee himself. However

    after the probate is granted the situation would be otherwise and the opposite

    party will then be entitled to claim his own right title interest on the strength

    of the probate if granted but till such time excepting the required amendment

    Page 32 of 33
    2026:CHC-AS:1111
    which is necessary after demise of the original plaintiff which are to be

    amended . Accordingly the portion of the order allowing the amendment is

    hereby set aside.

    46. The opposite party is given liberty to take out an amendment application

    afresh within a period of two weeks from this date and to serve the copy of the

    same to the conducting Advocate of the petitioner and the Learned Court is

    directed to dispose of such application at an earliest preferably within a period

    of one month therefrom after giving opportunity to both the parties.

    47. Accordingly this revisional application being C.O 2316 OF 2022 stands

    disposed of with the above observations.

    48. Urgent certified copy if applied by any of the parties to be supplied subject to

    observance of all formalities.

    (CHAITALI CHATTERJEE DAS, J.)

    Page 33 of 33



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