The main legal point established in the judgment is the applicability of the Portuguese Civil Procedure Code in relation to appeal arising out of Inventario proceedings, and the finding that the Indian Civil Code would apply. Additionally, the court emphasized the need for a jurisdictional error to justify a revision against an order passed by a subordinate Court.

JUDGMENT :- Mr. K. Sardessai, advocate for the respondent raises the following two points in opposition to the confirmation of an ad-interim stay issued by this Court dated 6-7-1978 on the appellants petition :-

(1) No appeal lies against the impugned order;

(2) No case has been made out that the appellant would sustain irreparable injury or loss in case interim stay as prayed for is not granted.

Mr. P. Mulgaonkar learned advocate for the appellant draws my attention to paragraph 17 of his appeal memo in which he has stated that in case it be held that the impugned order is not appealable the appeal may be treated as a revision. He however concedes during argument that no appeal as such under the Code of Civil Procedure, 1908 since applied to this Territory will lie. He has therefore requested the Court to treat this as a revision under the same Code. But Mr. Sardessai argues that neither appeal nor a revision will lie against the impugned order under the Code of Civil Procedure since the said Code has no applicability in relation to Inventario proceedings. According to him Inventario proceedings are still to be guided, regulated and proceeded with the procedure or law obtained in Portuguese Civil P. C. In this connection he has referred to several provisions of the said Code. Mr. Mulgaonkar has submitted on the strength of two decisions of the Supreme Court that the Portuguese C. P. C. in relation to appeal arising out of Inventario proceedings are no longer applicable although institution of Inventario proceedings having been saved can be filed and proceeded with according to the provisions of the Portuguese Code. The Supreme Court rendered their decisions in the case of Jose Da Costa v. Bascora Sadashiva Sinai Narcornin (AIR 1975 SC 1843) and in the case of Narhari Shivram Shet Narvekar v. Pannalal Umediram (AIR 1977 SC 164). The following observation of the Supreme Court made in the case of Jose Da Costa has been reiterated in the latter decision:- "Thus considered, it is clear that the procedural provisions of the Portuguese Civil Code were no longer applicable to this case with effect from 15-6-1966. If that be the correct position, there is no legal hurdle in the way of the appellant to the re-agitation in this Court of the issue as to prescription left undecided by the Court below .............. To sum up since on and from 15-6-1966 the Portuguese Law relating to Reclamacao stood repealed and no substantive right or obligation had been acquired or incurred under that repealed law within the meaning of the first proviso to S. 4 (1) of Act 30 of 1965, the appellants cannot be debarred from canvassing in this appeal under Art. 136, the plea of prescription notwithstanding the fact that they did not file any Reclamacao in the Court of the Judicial Commissioner. We therefore negative the preliminary objection raised by the respondents."

Unless the right of appeal or revision is considered as a substantive right-a matter which has not yet been argued-the procedure with regard to appeal, revision, etc. arising out of Inventario Proceeding has to be resorted to under the procedure of the Code of Civil Procedure, 1908. This is the prima facie impression one gets after going through the two decisions of the Supreme Court.

2. The next point for consideration as argued by Mr. Sardessai is that even assuming that the Indian Civil Code applies to the case, no case for filing a revision has been made out. To this the reply of Mr. Mulgaonkar is that the order of the Trial Court suffers from a jurisdictional error inasmuch as it has passed an order without jurisdiction. Mr. Sardessai has not been able to show that the Trial Court could pass such an order. A revision would lie against an order passed by subordinate Court if it contains a jurisdictional error. Prima facie I am satisfied that the impugned order suffers from an infirmity arising out of illegal exercise of jurisdiction. Therefore a revision will lie against the impugned order. T

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