AD – 19 Ct No.16 16.09.2026 (SSS) FMA 96 of 2026 with CAN 2 of 2026 with CAN 4 of 2026 Tuhin Kumar Biswas and Ors. Vs. Amalendu Biswas Mr. Somnath Ghoshal, Mr. Satyajit Senapati, Mr. Dipanjan Karmakar, Mr. Bisweswar Patra ....for the appellants. Mr. Tilak Mitra, Mr. Darpan Dutta …for the respondent. 1. Affidavit of service filed today be kept on record. 2. Although the original respondents are represented through counsel, none appears for the proposed added respondent at the time of call. 3. Since the appeal has been preferred against an order whereby the proposed added respondent was substituted under Order XXII Rule 10 of the Code of Civil Procedure, the said proposed added respondent is a necessary party to the appeal. Accordingly, CAN 4 of 2026 is allowed, thereby adding Ravi Khaitan (substituted defendant in the suit), the particulars of whom have been given in the cause title of CAN 4 of 2026, as a respondent to the present appeal. 4. There will be no order as to costs. 5. The necessary consequential amendments to the memorandum of appeal and the other pending applications shall be carried out by the learned Advocate-on-record for the appellants during the course of the day. 6. The appeal is now taken up for hearing under Order XLI Rule 11 of the Code of Civil Procedure. 7. The present appeal has been preferred against an order whereby an application under Order XXII Rule 10 of the Code of Civil Procedure was allowed by the learned Trial Judge. 8. Learned counsel for the appellants submits that during pendency of the suit, initially for partition and subsequently amended to a declaratory suit with consequential reliefs, an order of injunction was passed on November 29, 2018 till disposal of the suit. It is submitted that there was also a counter claim subsisting in connection with the suit. Learned counsel further argues that although the suit was dismissed for default, the counter claim was still subsisting, thus lending an element of continuation to the suit. That apart, an application under Order IX 2 Rule 13 of the Code of Civil Procedure was also pending at the behest of the plaintiffs/appellants for restoration of the suit. 9. During the juncture when the suit stood dismissed for default but the Order IX Rule 13 application and the counter claim were pending, the suit property was transferred in favour of the added respondent (the substituted party in the suit). Thus, it is argued that the transfer was effected in favour of the substituted party in defiance of and in violation of the order of injunction passed by the learned Trial Judge, which ought to be deemed to have continued during pendency of the counter claim as well as the Order IX Rule 13 application. 10. Hence, it is argued that the learned Trial Judge erred in law in substituting such party, in the teeth of the transfer in his favour itself being void/invalid, being in violation of an order of injunction. 11. Learned counsel for the appellants relies on Surjit and Ors. vs. Harbans Singh and Ors. etc. etc. reported at (1995) 6 SCC 50. 12. In the said judgment, a proposition was laid down that if an alienation/assignment is made in defiance of a restraint order, the same tantamounts to violation of the injunction order. 3 The Hon’ble Supreme Court, while so observing, held that the assignees cannot claim in such a case to be impleaded as parties on the basis of the assignment, in view of the assignment itself being in violation of an injunction order. 13. However, since there was no subsisting injunction order at the juncture when the transfer was effected in the case at hand, the ratio of the said judgment is not applicable to the present case. 14. From the materials placed before us, we find that the order of injunction passed in respect of the suit property dated November 29, 2018 was to operate “till disposal of the suit”. 15. It is well settled that a counter claim has a separate identity from a suit, although filed in connection therewith, having the trappings of an independent suit. In fact, it is for such very reason that the counter claim in the present case survived the dismissal of the suit for default. If the two were identical and the same, the counter claim could not have survived even after the dismissal of the suit. 16. Thus, the argument of the appellants, that the pendency of the counter claim retained the life of the injunction order, cannot be accepted. The order of injunction, having been passed till 4 disposal of the suit, expired automatically with the dismissal of the suit, even if for default. 17. Hence, at the juncture when the transfer was effected in favour of the substituted party, there was no subsisting injunction. Subsequent restoration of the suit did not give retrospective effect to the injunction order. 18. Thus, the transfer in favour of the substituted party could not be said to be invalid, being in violation of any injunction order, and formed a legitimate basis of substitution of the said party in the suit, he having acquired a vital interest in the outcome of the same by dint of the transfer in his favour. 19. Also, mere pendency of an application for restoration of the suit cannot be said to be a continuation of the suit, at least insofar as the continuation of the injunction order in question is concerned. 20. Thus, we do not find any merit in the appellants’ contention that the transfer effected in favour of the substituted defendant was ex facie invalid or void. 21. Hence, the appeal is devoid of merits. 22. Accordingly, FMA 96 of 2026 is dismissed under Order XLI Rule 11 of the Code of Civil Procedure. 5 23. Consequentially, CAN 2 of 2026 is also dismissed. 24. There will be no order as to costs. 25. Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of due formalities in that regard. (Sabyasachi Bhattacharyya, J.) (Sandip Kumar De, J.) 6