Patna High Court - Orders
Most. Kewala Devi & Anr. vs Sri Krishna Devi & Anr. on 27 February, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.15 of 2010
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Most. Kewala Devi & Anr.
.... .... Appellant/s
Versus
Sri Krishna Devi & Anr.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rajeev Kumar Sinha
For the Respondent/s : Mr. Shankar Kumar
: Mr. Abinash Kumar
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV ORDER
ORDER
08. 27-02-20121. The stamp reporter placed a stamp report dated 19.1.2012 that in view of the Full Bench decision reported in 2009 (3) PLJR 990 this first appeal is not maintainable. The Misc. appeal is maintainable.
2. The learned senior counsel Mr. Maitin appearing on behalf of the appellant submitted that the full bench decision referred to above is not applicable in the present case because the full bench decision considered the provision of appeal as contained in Section 19 of the Family Court Act, 1984. The present appeal has been filed under Section 299 of the Indian Succession Act. According to the learned senior counsel in view of Section 299 of the Succession Act, 1925 the appeal shall be filed to the High Court in accordance with the provisions of the Code of Civil Procedure applicable to appeals and accordingly, Patna High Court FA No.15 of 2010 (8) dt.27-02-2012 2 the appellant has filed this first appeal.
3. From perusal of the Full Bench Decision reported in 2009 (3) PLJR 990 Sunita Kumari vs. Prem Kumar it appears that the full bench of this Court considered the definition of decree provided under Section 2 Sub Section 2 of the Code of Civil Procedure and the provision of Section 19 of the Family Court Act, 1984. After considering the provisions the full bench held that the word „decree‟ is conspicuously absence in Section 19 of the Family Court Act and the non-obstant clause noticed in the decision means that the definition made in the Code of Civil Procedure between appeals from original decree and those from orders have been done way with. As a result the provision for appeal under Section 19 of the Family Court Act is meant to take care of all kinds of judgments and orders of the Family Courts, not being interlocutory in nature, regardless of the fact whether such judgments and orders amounting to a decree as defined under Code of Civil Procedure or not. Various kinds of orders from which appeals lie under Section 104 of the Code of Civil Procedure and under Order 43 Rule 1 of the Code of Civil Procedure indicated that many of such orders though made appealable do not amount to a decree as defined under Section 2 of the Code of Civil Procedure. The decree is a formal expression Patna High Court FA No.15 of 2010 (8) dt.27-02-2012 3 of only that adjudicate which for the court concerned conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit. It may be either preliminary or final. The definition of decree further provides that it shall not include (a) any adjudication from which appeal lies as an appeal from an order (b) any order of dismissal for default. But even such orders are covered by the provisions for appeal under Section 19 of the Act and hence the legislature clearly intended to cover all kinds of judgments and orders whether amounting to decree or not under the expression of a judgment or order occurring under Section 19 of the Family Court Act.
4. For better appreciation the provision as contained in Section 299 of the Indian Succession Act is hereinbelow :
"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 (5 of 1908) applicable to appeals."
5. Therefore, this provision is similar to that of Section 19 of the Family Court Act. Under Section 19 of the Family Court Act it has been provided that an appeal shall lie from every Patna High Court FA No.15 of 2010 (8) dt.27-02-2012 4 judgment or order which is not interlocutory order of a family court to the High Court. Under Section 299 even the word judgment is absent. As quoted above every order is appealable.
6. In the case of Siddhnath Bharti vs. Jai Narayan Bharti AIR 1994 Patna 144 a Division Bench of this Court after considering various decision of this Court as well as other High Courts has categorically held that the contentious proceeding for grant or refusal of probate and letters of administration is not a suit in substance and the order in the said provision is not a "decree", as it does not fulfill the ingredients of "decree" as defined under the code. Now therefore, if the order passed under Section 299 of the Indian Succession Act is not a decree then how the provisions of the Code of Civil Procedure applicable to appeals arising from original decree will be applicable ?
7. It is well settled principles of law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbol that stimulates mental references to referents. The object of interpreting a statute is to ascertain the intention of the legislature enacting it. The intention of the legislature is primarily to be gathered from the language Patna High Court FA No.15 of 2010 (8) dt.27-02-2012 5 used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. A casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statutes itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. Here in the present case as has been stated above the legislature clearly has omitted the word "decree" or "judgment" in Section 299 of the Indian Succession Act. For the purpose of the interpretation of Section 299 the Court cannot infer or supply the word judgment or decree. Section 96 of the Code of Civil Procedure provides for appeals from original decree.
8. In view of the above position of law since the order in probate application is not a decree there is no question of application of Section 96 of C.P.C. arises. In other words the Patna High Court FA No.15 of 2010 (8) dt.27-02-2012 6 provisions applicable to first appeal is not applicable in cases of appeals arising from the probate applications. Since it has been held by the Division Bench that the order is not a decree the provisions applicable for the appeals arising from order will be applicable. In other words the first appeal against the order of District Judge passed in probate case will not lie before the High Court. The full bench decision of this Court has considered the mater elaborately.
9. In view of the above facts and circumstances of the case, in my opinion, the ratio decedendi decided by the full bench is applicable in the present case. Therefore, ultimately I come to the conclusion that first appeal is not maintainable. The appellant may convert this first appeal to misc. appeal as I have already held that the provision of appeals arising from orders is applicable. Thus, it is hereby directed that if first appeal is not converted to misc. appeal within next two weeks, the first appeal shall stands dismissed as not maintainable.
(Mungeshwar Sahoo, J) S.S. A.F.R.