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2017 DIGILAW 813 (CAL)

Gita Das v. Sephali Lata Das

2017-10-24

JYOTIRMAY BHATTACHARYA, SHEKHAR B.SARAF

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This second miscellaneous appeal has been filed by the appellants challenging an order passed by the learned Appeal Court in the miscellaneous appeal arising out of a proceeding under the Indian Succession Act relating to grant of succession certificate. The District Delegate refused to grant the succession certificate in favour of the applicants/appellants. The said order was challenged by the appellants before the court of the learned District Judge, South 24-Parganas at Alipore. The appeal was dismissed. The order of the learned District Delegate which was challenged in the said appeal was affirmed. Challenging the legality and/or propriety of the said order passed by the learned Appeal Court, the instant second miscellaneous appeal has been filed by the appellants. 2. The Stamp Reporter has expressed his doubt about the maintainability of the instant second miscellaneous appeal in view of the provision contained in Section 104(2) of the Civil Procedure Code. 3. Mr. Roy, learned advocate appearing for the appellants has drawn our attention to the provision of Section 388 of the Indian Succession Act which, in our view, is the decisive factor to decide the issue as to whether this second miscellaneous appeal will lie before this High Court or not. Section 388(2) and Section 388(3) of the Indian Succession Act are set out hereunder :- “Section 388(2). – Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the 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 the 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 authorises the High Court to make by its order on an appeal from an order of a District Judge.” “Section 388(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. On conjoint reading of those two provisions, we have no hesitation to hold that the decision which was passed by the learned Appeal Court, which is under challenge in this second miscellaneous appeal, became final and is not assailable in second appeal before this Court. It is provided in sub-section (3) of Section 388 of the Indian Succession Act that 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. 5. As such, we have no hesitation to hold that though the order which is appealed against is revisable by the High Court, but second appeal will not lie. Such conclusion we have drawn by relying upon a single Bench decision of Nagpur High Court in the case of Mt. Shakuran Bi and others Vs. Mt. Aishabi reported in AIR (37) 1950 Nagpur 244 wherein it was held that where an application for succession certificate is made to the Civil Judge, under the proviso to sub-section (2) of Section 388, Succession Act, an appeal lies from the decision of a Civil Judge to a District Judge whose decision is not open to second appeal but only to revision by the High Court. Accordingly, we decline to entertain this appeal. The appeal stands dismissed. 6. It is, however, made clear that this order of dismissal of the appeal will not preclude the appellants from seeking appropriate remedy before the appropriate forum in accordance with law. 7. On the prayer of Mr. Roy, learned advocate appearing for the appellants, we permit the learned advocate-on-record of the appellants to take back the certified copy of the impugned judgement by supplying a true photostat copy of the same from the concerned department. 8. 7. On the prayer of Mr. Roy, learned advocate appearing for the appellants, we permit the learned advocate-on-record of the appellants to take back the certified copy of the impugned judgement by supplying a true photostat copy of the same from the concerned department. 8. In view of dismissal of the appeal in the manner as aforesaid, no further order need be passed on the application being CAN 5367 of 2017. The said application is, thus, deemed to be disposed of.