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2008 DIGILAW 496 (KAR)

PRESSY PINTO v. RONY MAXIM PINTO

2008-09-12

ARALI NAGARAJ, MANJULA CHELLUR

body2008
Order ORDERS ON THE REFERENCE OF THE LEARNED SINGLE JUDGE When the registry of the High Court, raised objection with regard to maintainability of miscellaneous appeal the occasion arose for reference of the matter to Division Bench to clarify the position. As a matter of fact, the reference by the learned Single Judge was because of opinion of another learned Single Judge in R.F.A. No. 324 of 2002 holding that the regular first appeal was maintainable against the decree in O.S. No.2 of 1991 (converted from P and SC No.6 of 1989). In the said R.F.A. No. 324 of 2002 by making reference to the decision of Anthony Swamy v Chowramma, the learned Judge held that the RFA would be maintainable. 2. The facts that led to the filing of miscellaneous appeal before this Court in brief are as under: P and SC No. 91 of 2000 came to be filed by the 1st respondent herein against the appellant herein and the said matter came to be contested by the appellant/respondent. Therefore, the P and SC came to be converted as O.S. No. 14 of 2002 in view of Section 295 of the Indian Succession Act, 1925. When the decree in the said suit came to be challenged by filing miscellaneous appeal, the office raised objection that RFA would be maintainable in view of the observation of learned Single Judge on earlier occasion in RFA No. 324 of 2002. 3. Sections 295 and 299 of the Indian Succession Act, 1925 and so also Sections 96 and 104 and Order 43, Rules 1 and 2 of the Civil Procedure Code, 1908 are relevant for the purpose of appreciating the above matter in the right perspective. Section 295 of the Indian Succession Act reads as under: "Procedure in contentious cases.-In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant". The very reading of the section makes it clear that whenever an application for grant of probate or letters of administration is contested, the said application would automatically turn to be a regular suit as contemplated under the provisions of the Civil Procedure Code. It further connotes that even the parties referred to therein shall take the form of plaintiff who seeks probate or letters of administration and the party who oppose the grant of such probate or letters of administration shall become the defendant. Section 299 of the Act reads as under: "Appeals from orders of District Judge.-Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908, applicable to appeals". A plain reading of the above Section would simply indicate that the order made by a District Judge under the provisions of Indian Succession Act shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure applicable to appeals. 4. The question posed before us is whether such appeal could be termed as miscellaneous first appeal or regular first appeal. If it is a miscellaneous first appeal, Section 104 and Order 43, Rules 1 and 2 of the CPC are applicable and if it is a regular first appeal Section 96 and Order 41, Rules 1 and 2 of the CPC are applicable. Section 1e6 reads as under: "Appeal from original decree.-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authoirsed to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees". The very heading of the said section indicates "Appeal from original decree". (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees". The very heading of the said section indicates "Appeal from original decree". The section contemplates that whenever a Court passes a decree exercising original jurisdiction vested with the said Court, an appeal shall lie to the Court authorised to hear such appeals. Section 104 reads as under: "Orders from which appeal lies.-( 1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders.- …….. (ff) an order under Section 35-A; (ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or 92, as the case may be; (g) an order under Section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules: Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this Section 24 of the Hindu Marriage Act, 1955". Order 43, Rules 1 and 2 read as under: "1. (2) No appeal shall lie from any order passed in appeal under this Section 24 of the Hindu Marriage Act, 1955". Order 43, Rules 1 and 2 read as under: "1. Appeals from orders.-An appeal shall lie from the following orders under the provisions of Section 104, namely.- (a) an order under Rule 10 of Order 7 returning a plaint to be presented to the proper Court except where the procedure specified in Rule 10-A of Order 7 has been followed; (c) an order under Rule 9 of Order 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (d) an order under Rule 13 of Order 9 rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte; ….. (f) an order under Rule 21 of Order 11; …… (i) an order under Rule 34 of Order 21 on an objection to the draft of a document or of an endorsement; (j) an order under Rule 72 or Rule 92 of Order 21 setting aside or refusing to set aside a sale; (j-a) an order rejecting an application made under sub-rule (1) of Rule 106 of Order 21, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of Rule 105 of that order is appealable; (k) an order under Rule 9 or Order 22 refusing to set aside the abatement or dismissal of a suit; (l)an order under Rule 10 of Order 22 giving or refusing to give leave; ……. (n) an order under Rule 2 of Order 25 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (n-a) an order under Rule 5 or Rule 7 of Order 33 rejecting an application for permission to sue as an indigent person; ……. (n) an order under Rule 2 of Order 25 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (n-a) an order under Rule 5 or Rule 7 of Order 33 rejecting an application for permission to sue as an indigent person; ……. (p) orders in interpleader suits under Rule 3, Rule 4 or Rule 6 of Order 35; (q) an order under Rule 2, Rule 3 or Rule 6 of Order 38; (r) an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order 39; (s) an order under Rule 1 or Rule 4 of Order 40; (t) an order of refusal under Rule 19 of Order 41 to readmit, or under Rule 21 of Order 41 to rehear, an appeal; (u) an order under Rule 23 or Rule 23-A or Order 41 remanding a case, where an appeal would lie from the decree of the appellate Court; (w) an order under Rule 4 of Order 47 granting an application for review". It is also necessary to refer to the definition "decree" under sub-section (2) of Section 2 and also definition of "Order" under sub-section (14) of Section 2 of the CPC which reads as under: ""Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include.- (a) any adjudication from which an appeal lies as an appeal from an order; or (b) any order of dismissal for default. "Order" means the formal expression of any decision of a Civil Court which is not a decree". From the reading of the above provisions of law and the decision of the Division Bench of this Court in the case of Anthony Swamy, referred to above it is made clear that Section 295 clearly contemplates conversion of a petition for grant of probate or letters of administration automatically into a suit and even the parties to the proceedings get transformed as plaintiff and defendant automatically. When a decision is made determining the rights of the parties with regard to the matters in controversy, genuineness or otherwise of the Will etc., such a final decision of the Court would become a decree. Once the petition under Indian Succession Act becomes a contentious one, it shall be treated as a suit and even the case is numbered as original suit. The Court shall frame issues, allow the parties to lead evidence and then finally proceed to pronounce the judgment decreeing or dismissing the suit as the case may be. As per sub-section (14) of Section 2 "order" also means formal expression of any decision of a Civil Court which is not a decree. When once the P and SC takes the form of an original suit, all the stages of suit have to be proceeded with and the ultimate result would be either decreeing the suit or dismissing the suit. The final decision of a contested matter pertaining to issues of probate or letters of administration ultimately results in the form of a decree if the case of the plaintiff is approved. 5. In other words, by virtue of Section 295 of the Indian Succession Act and the definitions referred to above, the contested matter in respect of a petition for probate or letters of administration becomes a suit and by virtue of Section 299 the appeal shall be in accordance with the provisions of Code of Civil Procedure. By virtue of sub-section (2) of Section 2, Section 96, Order 41, Rule 1, such contested matter against the orders in a original suit pertaining to issue of probate or letters of administration has to be termed as regular first appeal. As already stated above, after referring to the provisions of the Karnataka Court Fees and Suits Valuation Act, 1958, Division Bench of this Court in Anthony Swamy's case has said how Court fee has to be paid on a contested matter pertaining to issuance of letters of administration or probate. Whenever an occasion arises to challenge the orders of the Court pertaining to P and SC which is not contested, then such appeal shall be miscellaneous first appeal. Accordingly, we answer the reference by holding that a regular first appeal would lie against a judgment/decree passed in a suit which is converted from P and SC proceedings, as contemplated under Section 295 of the Indian Succession Act.