Vitta Devi And 2 Others vs Atul Singh And 4 Others
2017 Latest Caselaw 8021 ALL

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