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2004 DIGILAW 35 (CAL)

SHYAMALI MIDDYA v. ANJANA ALIAS HEMANGINI ARI

2004-01-16

D.K.SETH, RAJENDRA NATH SINHA

body2004
D. K. SETH, J. ( 1 ) MR. Sahoo, learned Counsel appearing on behalf of the respondents had taken a preliminary objection as to the maintainability of this appeal before this Court. He had referred to section 388 of the Succession Act and had pointed out that the appeal would lie to the learned District Judge from an order passed by the learned District Delegate in view of the proviso to sub-section (2) of section 388. ( 2 ) MR. Bhattacharyya, however, contends that he is not aware as to whether the learned Judge was invested with the power in terms of section 388 of the succession Act, 1925 on the date he had passed the order. Therefore, in such a case, whether the appeal would lie before the learned District Judge or not is difficult to ascertain. However, he does not join issue with regard to the contention of Mr. Sahoo. ( 3 ) SECTION 388 creates a special jurisdiction on Court subordinate to the district Judge through investiture of power on the strength of notification issued by the State Government in the Official Gazette. Once such power is invested to a Court inferior to the District Judge, in that event, such Court would discharge the function of a District Judge by reason of such investiture. Now the appeals provided in section 384 normally lies to the High Court. This could have created confusion as to where the appeal would lie from an order passed by a Court invested with the power under section 388 of the Succession Act since such Court discharges the function of a District Court. But the legislature in its wisdom thought it fit to clarify the situation and remove the scope of confusion by enacting the proviso to sub-section (2) and this stands further clarified through sub-section (3 ). The intention of the legislature is clear and unambiguous and it has been expressed in no uncertain terms, as is apparent from the coining of the expressions, which we prefer to quote :"388. Investiture of inferior Courts with jurisdiction of District Court for purposes of this Act.- (1) The State Government may, by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part. Investiture of inferior Courts with jurisdiction of District Court for purposes of this Act.- (1) The State Government may, by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part. (2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge : provided that an appeal from any such order of an inferior Court as is mentioned in sub-section (1) of section 384 shall lie to the District Judge, and not to High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorizes the High Court to make by its order on an appeal from an order of a District Judge. (3) An order of a District Judge on an appeal from an order of an inferior court under the last foregoing sub-section shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as applied by section 141 of that Code, be final. (4) The District Judge may withdraw any proceedings, under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings". ( 4 ) THE language used is clear. It provided that the appeal from any order passed by an inferior Court invested with such power under section 388 shall lie to the District Judge and not to the High Court. Whereas sub-section (3)provides that the decision of a District Judge on an appeal from an order of inferior Court is final and not open to appeal to the High Court and is final but subject however to reference to or revision by High Court or review under the civil Procedure Code. Whereas sub-section (3)provides that the decision of a District Judge on an appeal from an order of inferior Court is final and not open to appeal to the High Court and is final but subject however to reference to or revision by High Court or review under the civil Procedure Code. ( 5 ) RULE 307 of the Civil Rules and Orders dealing with Succession Act prescribes the different officers in different Districts invested with the power under section 388 wherefrom it appears that the senior Munsif of Contai is invested with such power by a notification dated 13th July, 1927. Here Mr. Bhattacharyya submits that a report may be sought for as to whether the Officer was the senior Munsif, otherwise he might be in difficulty. He relied on the decisions in Benode Behari Sur Roy vs. Bijoy Laxmi Roy and Ors. , 85 Calwn 1 and radheshyam Basak vs. Santosh Kumar Basak and Ors. , AIR 1977 Calcutta 17 where a report was called for. Having regard to the facts of this case, we do not think that any report would be necessary to be called for. These two decisions, however, support the view have taken. ( 6 ) THIS view is being taken consistently by this Court as well as different high Courts, as would be apparent from the decisions in Subba Rao vs. Palanian dipillai, 1894 (17) ILR Madras 167 ; Huran Bibi and Anr. vs. Hingan Bibi, 1911 (34)ilr Allahabad Series 148; Jogram Das vs. Mangal Das, AIR 1917 Lah 276 bisesar Sheodayal Soonar vs. Jairam Bariyar Soonar, AIR 1940 Nagpur 16 and Mt. Shakuran Bi and Ors. vs. Mt. Aishabi, A. I. (37) 1950 Nagpur 244. Ou high Court in Karunamoyee Sett and Ors. vs. Lakshmi Rani Debi alias Khudubala debi, Cal LT 1993 (2) HC 177 had taken the same view following various decisions of this Court, namely, the decisions in Hirak Roy vs. S. K. Roy and Ors. , 95 C WN 629; Benode Behari (supra); Radheshyam Basak (supra); Sukhia Bewa vs. Secretary of State, 19 Calwn 551:21 CLJ154 as well as of other High Courts in Mst. Bhanwar Bai and Ors. vs. Balmukund and Anr. , AIR 1960 Rajasthan 9; jogram Das (supra); Basti Begam vs. Saulat Bahadur and Ors. , 21 1c 388; rangoon Botatdung Co. , 95 C WN 629; Benode Behari (supra); Radheshyam Basak (supra); Sukhia Bewa vs. Secretary of State, 19 Calwn 551:21 CLJ154 as well as of other High Courts in Mst. Bhanwar Bai and Ors. vs. Balmukund and Anr. , AIR 1960 Rajasthan 9; jogram Das (supra); Basti Begam vs. Saulat Bahadur and Ors. , 21 1c 388; rangoon Botatdung Co. Ltd. vs. Collector, Rangoon, 16 CLJ 245 and of the apex Court in Canga Bai vs. Vijoy Kumar and Ors. , AIR 1974 SC 1126 in order to take the same view. ( 7 ) IN that view of the matter, this appeal seems to be not maintainable before this Court. The learned Counsel for the appellant shall take back the memo of appeal and present the same to the Court of the learned District Judge, paschim Medinipur within a period of four weeks. The appellant may file an application under section 5 of the Limitation Act for condonation of delay. The appellant shall be entitled to the benefit of section 14 of the Limitation Act for pursuing the remedy before this Court. ( 8 ) LET xerox plain copies of this order, duly countersigned by the Assistant registrar (Court), be supplied to the learned Counsel appearing on behalf of the parties, on their usual undertakings. Appeal not maintainable.