ORDERS ON THE REFERENCE OF THE LEARNED SINGLE JUDGE

When the registry of the High Court, raised objection with regard to maintainability of miscellaneous appeal the occasion arose for reference of the matter to Division Bench to clarify the position. As a matter of fact, the reference by the learned Single Judge was because of opinion of another learned Single Judge in R.F.A. No. 324 of 2002 holding that the regular first appeal was maintainable against the decree in O.S. No.2 of 1991 (converted from P and SC No.6 of 1989). In the said R.F.A. No. 324 of 2002 by making reference to the decision of Anthony Swamy v Chowramma, the learned Judge held that the RFA would be maintainable.

2. The facts that led to the filing of miscellaneous appeal before this Court in brief are as under:

P and SC No. 91 of 2000 came to be filed by the 1st respondent herein against the appellant herein and the said matter came to be contested by the appellant/respondent. Therefore, the P and SC came to be converted as O.S. No. 14 of 2002 in view of Section 295 of the Indian Succession Act, 1925. When the decree in the said suit came to be challenged by filing miscellaneous appeal, the office raised objection that RFA would be maintainable in view of the observation of learned Single Judge on earlier occasion in RFA No. 324 of 2002.

3. Sections 295 and 299 of the Indian Succession Act, 1925 and so also Sections 96 and 104 and Order 43, Rules 1 and 2 of the Civil Procedure Code, 1908 are relevant for the purpose of appreciating the above matter in the right perspective.

Section 295 of the Indian Succession Act reads as under:

"Procedure in contentious cases.-In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant".

The very reading of the section makes it clear that whenever an application for grant of probate or letters of administration is contested, the said application would automatically turn to be a regular suit as contemplated under the provisions of the Civil Procedure Code. It further connotes that even the parties referred to therein shall take the form of plaintiff who seeks probate or letters of administration and the party who oppose the grant of such probate or letters of administration shall become the defendant.

Section 299 of the Act reads as under:

"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, applicable to appeals".

A plain reading of the above Section would simply indicate that the order made by a District Judge under the provisions of Indian Succession Act shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure applicable to appeals.

4. The question posed before us is whether such appeal could be termed as miscellaneous first appeal or regular first appeal. If it is a miscellaneous first appeal, Section 104 and Order 43, Rules 1 and 2 of the CPC are applicable and if it is a regular first appeal Section 96 and Order 41, Rules 1 and 2 of the CPC are applicable.

Section 1e6 reads as under:

"Appeal from original decree.-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authoirsed to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, exc