1. The stamp reporter placed a stamp report dated 19.1.2012 that in view of the Full Bench decision reported in 2009 (3) PLJR 990 this first appeal is not maintainable. The Misc. appeal is maintainable.

2. The learned senior counsel Mr. Maitin appearing on behalf of the appellant submitted that the full bench decision referred to above is not applicable in the present case because the full bench decision considered the provision of appeal as contained in Section 19 of the Family Court Act, 1984. The present appeal has been filed under Section 299 of the Indian Succession Act. According to the learned senior counsel in view of Section 299 of the Succession Act, 1925 the appeal shall be filed to the High Court in accordance with the provisions of the Code of Civil Procedure applicable to appeals and accordingly, the appellant has filed this first appeal.

3. From perusal of the Full Bench Decision reported in 2009 (3) PLJR 990 Sunita Kumari vs. Prem Kumar it appears that the full bench of this Court considered the definition of decree provided under Section 2 Sub Section 2 of the Code of Civil Procedure and the provision of Section 19 of the Family Court Act, 1984. After considering the provisions the full bench held that the word „decree? is conspicuously absence in Section 19 of the Family Court Act and the non-obstant clause noticed in the decision means that the definition made in the Code of Civil Procedure between appeals from original decree and those from orders have been done way with. As a result the provision for appeal under Section 19 of the Family Court Act is meant to take care of all kinds of judgments and orders of the Family Courts, not being interlocutory in nature, regardless of the fact whether such judgments and orders amounting to a decree as defined under Code of Civil Procedure or not. Various kinds of orders from which appeals lie under Section 104 of the Code of Civil Procedure and under Order 43 Rule 1 of the Code of Civil Procedure indicated that many of such orders though made appealable do not amount to a decree as defined under Section 2 of the Code of Civil Procedure. The decree is a formal expression of only that adjudicate which for the court concerned conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit. It may be either preliminary or final. The definition of decree further provides that it shall not include (a) any adjudication from which appeal lies as an appeal from an order (b) any order of dismissal for default. But even such orders are covered by the provisions for appeal under Section 19 of the Act and hence the legislature clearly intended to cover all kinds of judgments and orders whether amounting to decree or not under the expression of a judgment or order occurring under Section 19 of the Family Court Act.

4. For better appreciation the provision as contained in Section 299 of the Indian Succession Act is hereinbelow :

“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 (5 of 1908) applicable to appeals.”

5. Therefore, this provision is similar to that of Section 19 of the Family Court Act. Under Section 19 of the Family Court Act it has been provided that an appeal shall lie from every judgment or order which is not interlocutory order of a family court to the High Court. Under Section 299 even the word judgment is absent. As quoted above every order is appealable.

6. In the case of Siddhnath Bharti vs. Jai Narayan Bharti AIR 1994 Patna 144 a Division Bench of this Court after considering various decision of this Court as well as other High Courts has categorically held that the contentious proceeding for grant or refusal of probate and letters of administration is not a suit in substance and the order in the said provisio