Patna High Court
Mosamatt Parmeshwari Devi And Anr. vs Geeta Devi And Ors. on 21 August, 2000
Equivalent citations: AIR2001PAT107, 2000(48)BLJR2381, AIR 2001 PATNA 107, 2000 BLJR 3 2381
Author: Anil Kumar Sinha
Bench: Anil Kumar Sinha
JUDGMENT Anil Kumar Sinha, J.
1. Both the Cases are taken up together as both arise out of the common judgment passed in Succession Certificate case No. 150/97 and 173/97.
2. Heard the learned counsel for both the sides on the interlocutary applications filed on behalf of the respondent No. 1 Geeta Devi, in both the cases which are kept at flag 'Y', wherein, it has been stated that the appellant preferred the instant first appeals against the order dated 2-12-1999 passed in Succession Certificate Case No. 150/97 and 173/97 by the District Delegate-cum--Sub-Judge, 1st, Dhanabad. who has been delegated the powers of the District Judge under Section 388 of the Indian Succession Art. 1925 (hereinafter to be referred as 'Act'). It has further been stated that under Section 388 (2) of the Act, the appeal will lie before the District Judge against the order passed by the Sub-ordinate Judge exercising the powers of the District Judge delegate. It has, therefore, been prayed that the memorandum of appeal may be returned to the appellants for presentation before the competent Court or in the alternative the stay granted by this Court vide order dated 28-6-2000 may be vacated.
3. A rejoinder has been filed on behalf of the appellants staling therein that the petition filed by the respondent no for vacating the order of stay to return and to return the memo of appeal to the appellants for presentation before the competent Court is not maintainable and fit to be dismissed. It has been stated that the appeal has been filed under Section 384 of the Indian Succession Act, 1925 and according to the provisions of Section 384, an appeal shall lie to the High Court. It has further been stated that in the judgeship of Dhanbad district, the powers for disposal of the Succession cases has been delegated to the Sub-ordinate Judge by issuing Notification and as such, the Subordinate Judge is performing the function of the District Judge under the Act, as if it were a District Judge and in that view of the matter, the appeal will He in the High Court against the order passed by the district Delegage-cum--Sub-judge, 1st, Dhanbad. That apart. It has been stated that the claim is for a sum of Rs. 1,66,184/- and the appeal has also been valued at Rs. 1,66,184/- and in that view of the matter also, the District Judge has got no power to entertain an appeal where the valuation is morethan rupees one lakh. On the aforesaid ground it has been prayed that the Interlocutory application filed on behalf of the respondent No. 1 should be rejected.
4. In order to appreciate the rival contentions of both the parties, the provision of Section 388 of the Act may usefully be quoted here-under:--
"388. Investiture of inferior Courts with jurisdiction of District Court for purposes of this Act. -- The State Government may. by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the function of a District Judge under this Part.
(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 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.
(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 Court of Civil Procedure, 1908 (5 of 1908), as applied by Section 141 of that Code, be final.
(4) The District Judge may withdraw any proceedings under this part from an inferior Court, and may either himself dispose of them or transfer them to another such court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceeding.
(5) A notification under Sub-section (1) may specify any inferior Court specially or any class of such courts in any local area.
(6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this section be deemed to be a Court inferior in grade to a District Judge."
5. It is manifest from the provision of Section 388 (2) and its proviso clause that any inferior Court who has been invested with the power to exercise the function of a District Judge shall within the local limits of its jurisdiction have concurrent jurisdiction with the District Judge in exercise of all the powers conferred by this part upon the District Judge but the proviso clause makes it abundantly clear that where the inferior Court has passed any order under Sub-section (1) of Section 384, then the appeal shall lie to the District Judge and not to the High Court.
6. In the instant case, the admitted position is that the order has been passed in the case by the inferior Court i.e., the Court of Sub-Judge, 1st, Dhanbad. Hence, in view of S, 388 (2) (proviso) an appeal against the order passed by the subordinate Judge shall lie before the District Judge.
7. The submission of the learned counsel that the District Judge has got no pecuniary jurisdiction to entertain an appear where the jurisdiction exceeds Rs. One lac has got no force in it because there is no such bar under the Act. The decision cited by the learned counsel in the case of Bhim Singh v. Mohan Lal Agarwal, 1991 (2) Pat. LJR 325, will have no application in this case which relates to the case under the general provision of the C.P.C. and not under the provision of this Act.
8. in the case of Mst. Bhanwar Bai v. Bahnukund, AIR 1960 Rajasthan, 9, similar question arose and his Lordship held as follows :-- (Para 5) "it clearly follows from the combined operation of Section 388 and Section 384 that where an order within the meaning of Section 384 of the Act has been passed by a Court inferior to that of the District Judge within the meaning of Sub-section 1 and 2 of Section 388 then an appeal from an order granting, refusing or revoking a certificate passed by such Judge shall lie to the District Judge and not to the High Court. It is true that an inferior Court properly invested with jurisdiction to decide such cases by the State Government in accordance with Sub-section (1) of Section 388 has concurrent jurisdiction with the District Court in so far as the exercise of all the powers conferred by this part of the Succession Act is concerned but this must he read subject to the proviso to Sub-section (2) of Section 388,which clearly provides that an appeal from any order of an inferior Court falling within the scope of Section 384 of the Act can only lie to the District Judge and not to the High Court."
9. Relying upon the aforesaid decision, I hold that the appeal against the order passed by the Sub-ordinate Judge shall lie to the District Judge and not before the High. Court in view of the provision of Section 388 (2) and proviso clause of the Act.
10. Accordingly, the memorandum of appeal be handed over to the appellants for presentation before the appropriate Court and the stay granted by this Court vide order dated 28-6-2000 stands vacated.