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2017 DIGILAW 345 (BOM)

Sunil s/o. Raju Salampure v. State of Maharashtra

2017-02-17

S.B.SHUKRE

body2017
JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent. 2. The learned Adhoc District Judge-2 by relying upon the judgment of the Division Bench of this Court in the case of Smt. Nola Jonathan Ranbhise Vs. The Union of India & Ors., 2014(4) ALL MR 181, held that the appeal filed under section 388 of the Indian Succession Act, 1955 is not maintainable before the Court of District Judge. 3. I think, the learned District Judge has gone way off the mark in applying the ratio of Smt. Nola (Supra). Said judgment considers Section 299 of the Indian Succession Act, wherein every order made under Chapter IV relating to practice in granting and revoking probates and letters of administration is appellable before the High Court. Said judgment, however, does not take into consideration the effect of section 388 of the said Act, which enables the State Government to invest in the Court inferior to the District Court by notification in the official gazette with power to exercise functions of the District Judge under Part X of Chapter 13 of the Indian Succession Act. Proviso to subsection (2) of Section 388 of the said Act shows that an appeal from any order of an inferior Court shall lie not to the High Court but to the District Court. This statutory provision is clear and it enables a notified interior Court to exercise the powers and when the order is passed by the notified inferior Court, such order is appellable before the District Judge. Same view is taken by the learned Single Judge in the case of Smt. Vitthal Ramchandra Mali Vs. Smt. Laxmi Ganpati Mali & Anr., 2006(4) ALL MR 389. 4. The judgment of Smt.Nola (Supra), therefore, has no application to the facts of the present case. In the circumstances, the instant writ petitions deserve to be allowed and the same are allowed accordingly with costs. The impugned order is quashed and set aside. The matter is remanded back to the Court of District Judge, Aurangabad to decide afresh in accordance with section 388 of the Indian Succession Act, after giving reasonable opportunity of hearing to the rival parties. The impugned order is quashed and set aside. The matter is remanded back to the Court of District Judge, Aurangabad to decide afresh in accordance with section 388 of the Indian Succession Act, after giving reasonable opportunity of hearing to the rival parties. Since, one of the parties is a senior citizen, it will be appropriate that the appeal is disposed of as expeditiously as possible, preferably within three months from the date of appearance of the parties before the District Court. The parties shall appear before the District Court on 28th February, 2017. Parties to maintain statusquo till appearance of the parties before the District Court. 5. Rule made absolute accordingly.