Allahabad High Court
Vitta Devi And 2 Others vs Atul Singh And 4 Others on 15 December, 2017
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 9 Case :- CIVIL REVISION No. - 347 of 2017 Revisionist :- Vitta Devi And 2 Others Opposite Party :- Atul Singh And 4 Others Counsel for Revisionist :- Nanhe Lal Tripathi,Radha Kant Ojha Counsel for Opposite Party :- Jai Bahadur Singh,Siddhartha Srivastava Hon'ble Anjani Kumar Mishra,J.
Heard Shri R.K. Ojha, Senior Advocate for the revisionist and Shri Siddhartha Srivastava, counsel for the opposite party Nos. 1, 2 and 3. The instant revision is directed against the order dated 17.10.2017 passed by the District Judge, Auraiya in a Misc. Appeal No. 5 of 2016 arising out of Suit No. 22 of 2012 under Section 372 of the Indian Succession Act, 1925 for grant of a succession certificate.
At the very outset counsel for the revisionist was asked to satisfy this Court as to the maintainability of this revision under Section 115 Code of Civil Procedure, 1908, in view of law laid down by the Full Bench in Jupiter Chit Funds vs. Dwarka Diesh & Ors. :AIR 1979 ALL 218. The Full Bench considered the words 'or other proceedings' occurring in the proviso to Section 115 Code of Civil Procedure, 1908 and has gone on to hold that these words mean that an order passed in original proceedings alone is revisable and that an appellate order in not amenable to revisional jurisdiction of the High Court under Section 115 Code of Civil Procedure, 1908. Counsel for the opposite party submits that the revision is, in fact, maintainable in view of Section 388 (3) of the Indian Succession Act. The sub-section relied upon by counsel for the respondent is quoted below:-
"(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 (5 of 1908), as applied by section 141 of that Code, be final."
Additionally, he has submitted that the words'revision by the High Court' is to be read separately from the words 'and as to review of judgment of the Code of Civil Procedure, 1908'. Both parts are mutually exclusive and, therefore, the Act specifically confers revisional jurisdiction upon the High Court. The Full Bench decision ,therefore, has not application in the case at hand.
The revision is, therefore, maintainable.
In my considered opinion, the contention of learned counsel for the respondent cannot be accepted because perusal of sub-section (3) itself shows that an order of the District Judge, on an appeal from an order of on an inferior court, shall be final, subject to provisions of reference revision and review as provided under the Code of Civil Procedure, 1908.
This Court does not find any reason to hold that the words "Code of Civil Procedure, 1908, as applied by Section 141 of the Code of Civil Procedure, 1908, be final." are not with regard to the powers of reference and revisions and relate to reviews alone. Besides, sub-Section (3) has to be read in continuation of the the proviso of sub- section (2) of Section 388 which reads as follows:
"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 provision of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge:"
To clarify the situation further in this regard, it is necessary to note that the case, where from the instant revision arises, was one for grant a succession certificate under Section 372 of the Indian Succession Act. 1925. Part 10 of the Indian Succession Act deals with succession certificates.
Section 371 contained in this Part provides that it is the District Judge in whose jurisdiction the deceased ordinarily raised at the time of his death or the District Judge within whose jurisdiction any part of the property of the deceased may be found, is competent to grant a certificate.
Section 372 and 373 lay down the contents of an application for grant of a certificate as also the procedure for dealing with such an application.Section 384 provides for an appeal to the High Court from an order of the District Judge granting, refusing or revoking a certificate issued under Part 10.
Sub-section (3) of this Section also provides what is provided by sub-section (3) of Section 388 of the Indian Succession Act, 1925. Sub-section (1) of Section 388 empowers the State Government to bestow upon any Court, inferior in grade to a District Judge, the functions of a District Judge under this Part. It, therefore, follows that where the power conferred by Section 371, upon the District Judge to grant a succession certificate, on account of a notification by the State Government, is being exercised by a Court subordinate in grade to the District Judge, the appeal would lie to the District Judge under Section 384.
Such appellate order, in view of sub-section (3) of Section 384, is final subject to a reference or revision or review in accordance with Code of Civil Procedure, 1908 by the High Court. It means that the appellate jurisdiction exercised by the District Judge, while passing the order impugned, herein, is a power concurrent with that of the High court and this appellate power has been exercised by the District Judge only because the order on the application under Section 372 had been passed by a Court subordinate in grade to the District Judge.
Therefore, the appellate order is final subject to any reference revision or review by the High Court in accordance with the powers for the said purpose existing under the Code of Civil Procedure, 1908. In this connection it would also be relevant to note that application of the provisions of the Code of Civil Procedure, 1908, be it under sub- section (3) of Section 384 or under sub-section (3) of Section 388 are by reference to the provisions in the Code of Civil Procedure, regarding the power of reference, review and revision.
A provision of another Act can be applied to proceedings under another enactment.
Such application may be either by way of reference or by way of incorporation.
It is settled law that where the provisions of another Act are made applicable in another enactment, by reference, such reference would necessarily entail application of the referredprovisions in the manner, the said exists, on the date of its application. provision However, in case, the provisions are applied by incorporation, the provision as it existed on the date of incorporation would be applicable. There is no doubt that the provisions of reference, revision, and review be it under Section 384 or Section 388, are by reference. Therefore, the provisions relating to reference review and revision in the Code of Civil Procedure, as existing on the date of their application, are to be taken into consideration. The provision of revision as provided under the Code of Civil Procedure, 1908 can therefore, be invoked only to be extent the revisional powers are conferred upon the High Court by Section 115 of the Code of Civil Procedure, 1908 as its stands today.
The Indian Succession Act is an enactment of the year 1925.
The revisional powers under Section 115 of the Code of Civil Procedure, 1908 underwent an amendment in 1976.
This amendment led a dispute regarding the High Court's revisional jurisdiction which necessitated reference to a Full Bench. The issue was thereafter, resolved by the Full Bench in Jupiter Chit Funds (supra) and as noticed above, the Full Bench has, in effect, held that the High Court can exercise its revisional powers only against orders passed in original proceedings and not as regards orders passed at the appellate stage. The order impugned in the case at hand had been passed at the appellate stage. It is, therefore, not revisable by the High Court under Section 115 of the Code of Civil Procedure, 1908. Shri R.K. Ojha, Senior Advocate states that he had earlier filed a petition under Article 227 of the Constitution of India, challenging the order impugned. This petition had been dismissed on the ground of availability by an alternative remedy under Section 388 (3), on an objection raised by counsel for the opposite party. He, therefore, submits that the remedy available to the revisionist against the impugned has already been availed, but the petition was not entertained.
Rather it was dismissed on the ground of availability of an alternative remedy, namely, this revision.
In view of the aforesaid facts and circumstances,it will be open for the revisionist to either convert this revision into a petition under Article 227 of the Constitution of India or to file a fresh petition. It will also be open to him to apply for recall of the order dated 28.11.2016 whereby his earlier petition under Article 227 of the Constitution of India, was held to be not maintainable or barred by the existence of a statutory alternative remedy. Subject to the above directions/ observations, this revision is dismissed as, not maintainable. Order Date :- 15.12.2017 Priyanka