The central legal point established in the judgment is the proper consideration and application of the provisions of the Indian Succession Act, 1925 and the Bombay Regulation VIII of 1827 in matters related to legal heirship and the maintainability of appeals.

JUDGMENT

1. By consent, heard both sides finally at admission stage.

2. Learned 3rd Joint Civil Judge Senior Division, Latur has decided Misc. Application No. 353 of 2014 filed by the other side for legal heir ship certificate ex parte. Though learned counsel for the respondents has vehemently submitted that the said order is not ex parte order and the petitioners herein have appeared in those proceedings, however, in the order passed by learned 3rd Joint Civil Judge Senior Division, Latur, I do not find any reference to the petitioners though the petitioners were party to the said proceedings. Apart from this, being aggrieved by the same, the petitioners preferred appeal before the District Court along with Civil Misc. Application (Delay) No. 194 of 2015 for condonation of delay. There was delay of 39 days caused in filing the appeal against the judgment and order of the 3rd Joint Civil Judge Senior Division, Latur in Misc. Application No. 353 of 2014 dated 29.07.2015. Learned District Judge-4,Latur, by the impugned order passed on 13.07.2016 below Exhibit 1 in Civil Misc. Application (Delay) No. 194 of 2015, has rejected the said application. Hence this Writ petition.

3. Learned counsel for the petitioners submits that learned District Judge-4, Latur has rejected the application seeking condonation of delay mainly on the ground that the appeal is not maintainable and therefore, the delay application too is not maintainable. Learned counsel submits that the entire approach of the District Judge is erroneous. Learned counsel submits that though learned District Judge has referred the provisions of Sections 390, 384 of the Indian Succession Act, 1925, however, learned District Judge has ignored the provisions of Section 388 of the Indian Succession Act, 1925.

4. Learned counsel for the respondents submits that even if the provisions of Section 388 are attracted and made applicable to the facts and circumstances of the present case, in terms of Sub-section (3) of Section 388, revision is maintainable before this Court. However, the petitioners have filed Writ Petition.

5. I have carefully perused the impugned order passed by District Judge-4, Latur on 13.07.2016 below Exhibit 1 in Civil Misc. Application (Delay) No. 194 of 2015.

6. Rules 1 and 2 of the Bombay Regulation VIII of 1827 are reproduced herein below:

"1. Whenever a person dies leaving property, whether movable or immovable, the heir or executor, or legal administrator, may assume the management, or sue for the recovery, of the property, in conformity with the law of usage applicable to the disposal of the said property, without making any previous application to the Court to be formally recognized.

2. First. - But if an heir, executor or administrator is desirous of having his right formally recognized by the Court; for the purpose of rendering it more safe for persons in possession of, or indebted to, the estate to acknowledge and deal with him, the Judge, on application, shall issue a proclamation, in the form contained in Appendix A, inviting all persons who dispute the right of the applicant to appear in the Court within one month from the date of the proclamation and enter their objections, and declaring that, if no sufficient objection is offered, the Judge will proceed to receive proof of the right of the applicant, and, if satisfied, grant him a certificate of heir ship, executor ship or administrator ship."

7. In terms of the provisions of Rule 1 of the Bombay Regulation VIII of 1827, whenever a person dies leaving property, whether movable or immovable, the heir or executor, or legal administrator, may assume the management, or sue for the recovery, of the property, inconformity with the law of usage applicable to the disposal of the said property, without making any previous application to the Court to be formally recognized. However, in terms of Rule 2 of the Bombay Regulation VIII of 1827, if an heir, executor or administrator is desirous of having his right forma