An appeal from the order passed by the Civil Judge shall lie only to the District Judge and not to the High Court.

Headnote:
INDIAN SUCCESSION ACT, 1925 - SECTION 276 - SECTION 28-A OF THE BOMBAY CIVIL COURTS ACT, 1869 - SECTION 388 - APPEAL AGAINST ORDER OF CIVIL JUDGE, SENIOR DIVISION - MAINTAINABILITY - JURISDICTION OF DISTRICT JUDGE - Held, appeal against order of Civil Judge, Senior Division on application under section 276 of the Indian Succession Act having valuation of Rs. 10,000/- lies before the District Court and not the High Court.
Fact of the Case:

Petitioner filed a petition under section 276 of the Indian Succession Act before the Civil Judge, SD, Amravati for grant of probate of will executed by one Vithal Dattatraya Gokhale. The petition was contested by the respondent and the Court granted probate of the will in favor of the petitioner. Dissatisfied with the order, the respondents filed an appeal before the 2nd Addl. District Judge, Amravati who allowed the appeal and set aside the order passed by the Civil Judge, Senior Division, Amravati.
Finding of the Court:

The Court held that the appeal filed before the District Judge was maintainable and the objection raised by the applicant has been rightly negatived. The Court further held that an appeal from the order passed by the Civil Judge shall lie only to the District Judge and not to the High Court.
Issues: Whether an appeal against the order of Civil Judge, Senior Division on application under section 276 of the Indian Succession Act having valuation of Rs. 10,000/- lies before the District Court or the High Court.
Ratio Decidendi: The Court relied on paragraphs 254 and 255 of the Civil Manual, section 28-A of the Bombay Civil Courts Act, 1869, and section 388 of the Indian Succession Act, 1925 to hold that the appeal against the order of Civil Judge, Senior Division on application under section 276 of the Indian Succession Act having valuation of Rs. 10,000/- lies before the District Court and not the High Court.
Final Decision: The Court dismissed the revision application with no order as to costs.

JUDGMENT - R.M. LODHA, J. :---The legality and correctness of the order passed by the 2nd Additional District Judge, Amravati on 10th April, 1987 reversing the order passed by the Civil Judge, Senior Division. Amravati on 18-2-1983 is under challenge in this revision application.

2. The only contention raised by the learned Senior Counsel for the applicant is that the Civil Judge, Senior Division, Amravati while deciding the petition for probate under section 276 of the Indian Succession Act was discharging the duties of the District Judge and therefore no appeal lay before the District Judge and the judgment passed by the Civil Judge, Senior Division, Amravati on 18th February, 1983 could have only been challenged before the High Court. In this connection, the learned Counsel for the applicant placed reliance on paragraphs 254 and 255 of the Civil Manual.

3. Per contra, Mr Udhoji, the learned Counsel for the respondent No. 1 submits that since the judgment was passed by the Civil Judge, Senior Division, Amravati in the petition for probate under section 276 of the Indian Succession Act with regard to the will subject matter of which was valued at Rs. 10,000/-, appeal against the judgment could only lie before the District Judge having jurisdiction over the matter and the respondent No. 1 herein rightly challenged the judgment passed by the Civil Judge, SD, Amravati on 18-2-1983 before the District Judge, Amravati who had jurisdiction over the matter. Mr Udhoji in this connection also relied on paragraphs 254 and 255 (old) (new para 305) of the Civil Manual and he also submits that in view of section 388 of the Indian Succession Act, 1925, the appeal could lie only before the District Judge and not to this Court as submitted by the learned Counsel for the applicant.

4. In view of the short controversy involved about the maintainability of appeal before the Additional District Judge who passed the order on 10-7-1987 impugned in the present revision application, facts in details are not required to be gone into and suffice it to observe that the present applicant Manohar filed petition under section 276 of the Indian Succession Act before the Civil Judge, SD, Amravati for grant of probate of will executed by one Vithal Dattatraya Gokhale on 31-5-1959. This petition was contested by the respondent No. 1 and the said Court ultimately by the judgment dated 18th Feb. 1983 granted probate of the will in favour of the applicant.

5. Dissatisfied with the order passed by the Civil Judge, SD, Amravati on 18-2-1983, the respondents herein filed an appeal before the 2nd Addl. District Judge, Amravati. Before the Additional District Judge also the objection about the maintainability of appeal was raised and the Appellate Court found that there was no merit in the said contention and after hearing the learned Counsel for parties on merits, reversed the order passed by the Civil Judge, SD, Amravati. Consequently, the appellate authority by the order dated 10-7-1987 allowed the appeal filed by the respondents herein and set aside the order passed by the Civil Judge, Senior Division, Amravati on 18-2-1993.

5-A. Paras 254 and 255 of the Civil Manual read as under :---

"254. Attention is invited to Government Notification No. 5861 dated the 25th October, 1890, issued under section 26(1) of the Succession Certificate Act (VII of 1889), and printed at page 1259 of the Bombay Local Rules and Orders under Central Acts, Volume I, 1953 edition, under which all Civil Judges in this State have for the purpose of the said Act been invested with the functions of a District Court. The notification has also the effect of investing Civil Judges with the power to hear applications made under section 2 of Bombay Regulation, VIII of 1827.

Although the Succession Certificate Act, 1889, has been repealed, the Notification dated 25th October, 1890, remains in force by virtue of section 24 of the General Clauses Act, 1897.

Applications under section 2 of Regulation VIII of

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