A decision under S.278 of the Indian Succession Act is only an order and not a decree, and an appeal against such a decision should be registered as a Miscellaneous First Appeal.

S. Marimuthu, J.

An Original Petition was filed as L. A. (O.P.) No. 159 of 1988 under S.278 of the Indian Succession Act, 1925 (for short "the act" ) before the Ilnd Additional District Judge, Ernakulam, to grant letters of administration to the plaintiffs. Later on, it was converted into O.S. No. 2 of 1990. On examining both the sides, the District Court passed a decree granting letters of administration to the plaintiffs. Aggrieved by it, defendants 13 to 15 in the suit have filed this Appeal. In registering the appeal, whether as an Appeal suit or as a Miscellaneous First Appeal, a doubt has arisen.

2. Mr. P. Sukumaran Nayar, learned senior counsel appearing for the respondents submitted that the order passed under S.278 of the Act is not based on a suit, on filing the plaint and written statement.

Therefore, such order is not at all termed as a decree as defined in the Code of Civil Procedure and Kerala Court Fees Act. When that be so, this appeal has to be registered only as a Miscellaneous First Appeal. On the other hand, Mr. N. Subramaniam, learned counsel appearing for the appellants would contend that though the order is based on an application or petition filed under S.278 of the Act, the proceeding was then converted into a suit and the petition and the counter filed therein were considered as plaint and written statement and therefore, the order passed in the proceeding is only a decree and in similar matters filed under S.278 of the Act decrees have been drafted by the trial courts and in appeal they have been registered as appeal suits and such practice is being followed in this Court and hence this matter can be registered as an Appeal Suit and not a Miscellaneous First Appeal.

3. In view of the above submissions of both the learned counsel, the filing section of this Court was directed to submit a report as to the mode of registration of such matters in appeals. The office note would be to the effect that when the matter is enquired and disposed of as an Original Petition before the trial court, then in appeal it is registered as a MFA and when it is disposed of by the trial court as an Original suit here it is numbered as A.S. The office note further indicates that S.299 of the Act provides that appeals lie to the High Court in accordance with the provisions of the CPC. And S.96 CPC does not provide for an appeal from an order. Thus, when the decree is produced by the appellant, it is numbered as Appeal Suit and when the order is produced along with the appeal, it is numbered as Miscellaneous First Appeal. In the above premises, the submissions of both the learned counsel, the office note and the law in this aspect can be thoroughly examined.

4. S.278 of the Act provides that only an application for letters of administration shall be made by a petition distinctly written. And it does not indicate that a plaint ought to be filed. The decree in S.2(2) of the CPC is defined as follows:

"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S.144, but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default".

The Full Bench of the Allahabad High Court (following the decision of the Privy Council reported in Hansraj Gupta v. Dehra Dun-Mussoorie Electric Transway Co., Ltd. (AIR 1933 PC 63) in Panzy Fernandas v. M.F. Queoros (AIR 1963 Allahabad 153 (FB) has laid down as follows :

"The order on a petition for letters of administration under S.278 of the Succession Act is not a decree as the order is not passed in a suit. Proceedings for letters of administration under the Succession Act are to commenced by the institution of a plaint.