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2023 DIGILAW 23 (ORI)

Ajit Mahanandia v. St. Aladini Prem

2023-01-09

B.P.ROUTRAY

body2023
JUDGMENT B. P. Routray, J. - Present appeal is preferred under Section 384 of the Indian Succession Act against the order passed by the learned Senior Civil Judge, Jeypore in I.C. No.02 of 2018. 2. Intestate Case No.02 of 2018 was filed by the Appellant (widower) praying for issuance of Succession Certificate under Section 372 of the Indian Succession Act upon death of his wife, namely Josila Josaswini Prem, the deceased. Sole Respondent was the Opposite Party, who is the brother of the deceased (kindred). 3. A preliminary objection is raised regarding maintainability of the appeal before this Court and according to the Respondent, the appeal should be laid before the District Judge, Koraput at Jeypore. 4. Before delving into the merits of the objection, it is required to have a relook to the relevant provisions. Section 384 of the Indian Succession Act prescribes that, subject to other provisions in Part-X of the said Act, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this part. Further, Section 388 authorizes the State Government to invest such power of the District Judge to any inferior court in grade by notification and an appeal from said inferior court shall lie to the District Judge and not to the High Court. 5. In the case at hand, there is no quarrel at the Bar that the State Government by notification dated 14th November, 1961 of Law Department have invested the power under Part-X of the Indian Succession Act, 1925 in favour of Principal Sub-ordinate Civil Judges and Munsifs within their respective local limits of jurisdiction. It is though true that the question of pecuniary jurisdiction is never a consideration to decide the application under Section 372 of the Indian Successions Act, nevertheless, the District Judges of the State are now authorized to entertain appeals up to highest pecuniary jurisdiction. 6. This Court in the case of Smt. Etinimayee Supakar @ Kisku and another v. Ratnamani Kisku and another, (2015) SCC Online Ori 532, while dealing with a similar issue, have held that, 'xx.. The appeal against the impugned order would not lie to this court under Section 384 of the Act. 6. This Court in the case of Smt. Etinimayee Supakar @ Kisku and another v. Ratnamani Kisku and another, (2015) SCC Online Ori 532, while dealing with a similar issue, have held that, 'xx.. The appeal against the impugned order would not lie to this court under Section 384 of the Act. Further, it can be said unhesitatingly that the District Judge having appellate jurisdiction over the Court, which passed the impugned order, is competent to entertain an appeal under Section 384 read with Section 388 of the Act.' Further, the Hyderabad High Court in the case of Pasumarthi Srinivas, AIR 2017 Hyderabad 65, have observed that, 'xx.. Section 384 is subject to other provisions of Part X which means the said Section is subject to Section 388 as per which, against the order passed by the inferior court, an appeal shall lie before the District Judge and not before the High Court.' 7. In view of clear prescription of law, as stated above, the contentions of the parties are not required to be reproduced here in detail. The objection raised by the Respondent is thus sustained and it is held that the present appeal before this Court is not maintainable, which needs to be filed before the learned District Judge. Accordingly, the appeal is disposed of with a direction to the Appellant to approach to the learned District Judge, Koraput at Jeypore within a period of thirty days from today and in such event, the learned District Judge shall deal with the appeal in accordance with law. The period consumed in pursuing the appeal before this Court shall be considered by the learned District Judge liberally to condone the delay. 8. An urgent certified copy of this order be issued as per rules.