Ram Kumar vs Shoola Devi
2018 Latest Caselaw 1305 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Reserved Judgment
 
Court No. - 19
 

 
Case :- CIVIL REVISION No. - 103 of 2009
 

 
Revisionist :- Ram Kumar
 
Opposite Party :- Shoola Devi
 
Counsel for Revisionist :- Vinod Pandey,R.K. Srivastava,Rakesh Kumar Srivastava
 
Counsel for Opposite Party :- Prem Shanker Shukla
 

 
Hon'ble Vivek Chaudhary,J.

Present civil revision is filed by revisionist under Section 388(4) of Indian Succession Act, 1925 (hereinafter referred to as 'Succession Act') challenging the judgment and order dated 15.07.2009 passed by District Judge Faizabad in Misc. Civil Appeal No.15 of 2009, which was preferred under Section 384/388(2) of Succession Act. The said appeal was allowed by the District Judge and by the said judgment and order, the District Judge had allowed the application of the respondents herein for grant of a succession certificate and order dated 02.02.2009 passed by the Judge S.C.C. Faizabad in Misc Case No.16 of 1998 was set aside. By his order dated 02.02.2009, the Judge S.C.C. Faizabad cancelled the succession certificate earlier granted in favour of respondents herein and had directed for granting a succession certificate in favour of revisionist herein.

The respondents have raised a preliminary objection with regard to the maintainability of the present civil revision. The objection of the respondent is that Section 388(4) does not provide for any civil revision. Power vested in the District Judge under Section 388(4) is with regard to withdrawing any proceedings from any court inferior to him and to dispose of the same himself or transfer them to another court. Such a power is only for transfer of the proceedings and is not a revisional power. Therefore, no revision can be filed under Section 388(4) of the Succession Act.

Learned counsel for the revisionist submits that the same is a typing error and in fact the revision would be maintainable under Section 388(3) of the Succession Act.

I have heard counsels for the parties.

Part-X of the Succession Act provides procedure with regard to grant of succession certificate. Section 371 empowers the District Judge to grant a succession certificate within whose jurisdiction the deceased ordinarily resided or within whose jurisdiction any part of the property of the deceased may be found to grant a succession certificate. Section 384 provides appeal against such an order, which reads as follows:-

"384. Appeal.-(1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted.

(2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (5 of 1908).

(3) Subject to the provisions of sub-section (1) and 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, an order of a District Judge under this Part shall be final."

Section 388 provides that State Government may invest the power of the District Judge to any Court inferior in grade to District Judge. Section 388 reads as follows:-

"388. Investiture of inferior courts with jurisdiction of District Court for purposes of this Act.- (1) 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 functions 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 were 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 Code 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 proceedings.

(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."

Thus, while Section 384 provides an appeal to the High Court against the order of the District Judge, Section 388(2) provides that in case the order is passed on the succession application by a court inferior to the court of District Judge, such an appeal would lie to the Court of District Judge. Section 384(3) and Section 388(3) proviso are also similarly worded. Section 384(3) provides that an order of the District Judge passed under Part-X is final subject to the appeal, as provided under Sub-Section 1 and also subject to the provisions, as to reference or appeal or review, as provided and applied by Section 141 of the C.P.C. Similarly, Section 388(3) provides that an order passed by a court inferior to the District Judge shall be final subject to an appeal to the District Judge and subject to the provisions as to reference or appeal or review, as provided and applied by Section 141 of the C.P.C. Section 141 of the C.P.C. reads as :-

"Miscellaneous proceedings:- The procedure provided in this Court in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.

[Explanation-In this Section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.]"

Thus, by invoking Section 141, the provisions of C.P.C. are made applicable and thus any revision, if maintainable, would be as per the provisions of C.P.C. Section 384(3) or Section 388(3) by themselves do not provide for any revision. They only provide for a revision, as provided under the C.P.C.

Section 115 of the C.P.C. provides for revision against certain orders. With regard to State of U.P., the same stands amended. The opening line of Section 115 as amended in State of U.P. reads:-

"A superior court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court........"

Thus, in State of U.P., due to the aforesaid amendment, a revision is maintainable only with regard to original suit or proceedings similar to original suit and is not maintainable with regard to any order passed in an appellate proceeding. Section 115 as stands in U.P. is considered in two Full Bench judgments. First is reported in AIR 1979 Allahabad 218 in case of M/S Jupiter Chit Fund (Pvt.) Ltd. Vs. Dwarka Diesh Dayal and Others. The question no.2 and its answer given by the Full Bench in the said case is as follows:-

"Question:(2) Whether the phrase "case arising out of an original suit" occurring in S.115 of the Code of Civil Procedure covers orders passed in an appeal or revision?

Answer: In the negative."

The issue was again considered by another Full Bench reported in AIR 1991 Allahabad 114; Ganga Saran Vs. Civil Judge Hapur, Ghaziabad and other. Again after amendment of C.P.C, the said phrase was continued and the question no.1 and its answer given by the second Full Bench in the said case is as follows:-

"Question no.1:-Whether the judgment of the Supreme Court reported in Qamruddin Vs. Rasul Baksh 1990 All WC 308 has the effect to overruling the Full Bench decision of this Court in Jupiter Chit Fund (P) Ltd. Vs. Dwarka Diesh, AIR 1979 All 218 as affirmed by the judgment of the Supreme Court in Vishesh Kumar Vs.Shanti Prasad (AIR) 1980 SC 892 and Sri Vishnu Awatar Vs. Shiv Awatar (AIR 1980 SC 1575)."

After considering the earlier Full Bench in paragraph 12, answer was again in negative. In both the full Benches, it is settled that in State of U.P., a revision is maintainable only against an order passed in original suit or in similar proceedings. In present civil revision the order challenged is passed in misc. appeal and not in original suit, therefore, civil revision would not be maintainable even under section 115 of the C.P.C.

Thus, in view of aforesaid discussion, a revision is not maintainable either under Section 384(3) or Section 388(3) or Section 388(4) of the Succession Act. In the facts of the present case, since the order is passed in an appeal, in view of aforesaid two Full Benches' decision, a revision under Section 115 of the C.P.C. is also not maintainable. Therefore, the present revision is dismissed on ground of maintainability.

Order Date:-02.07.2018

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