A RESPONDENT WHO CLAIMS TO BE THE DECEASED'S WIFE CAN FILE A PETITION FOR REVOCATION OF THE SUCCESSION CERTIFICATE UNDER SECTION 383 OF THE INDIAN SUCCESSION ACT, 1925, WHILE AN APPEAL AGAINST THE GRANT OF THE SUCCESSION CERTIFICATE IS PENDING.

1. - This miscellaneous appeal is directed against the order of learned District Judge, Bikaner dated 5.5.90 whereby he has granted temporary injunction in favour of I he respondents.

2. In brief the facts stated by the petitioner No. 1 are that she was married to Balram Singh in the year 1956 and had four sons and one daughter by this wedlock. They were living in the house of her father in law at Bkaner. It was alleged that after his transfer, relations between then became strained. Balramsingh filed a divorce petition but the same was dismissed on 4.5.92. He preferred an appeal by the same was also dismissed as withdrawn. The father of the appellant Manoherlal deceased bequeathed his house situated at Ranibazar in favour of the appellant No. 1 on 3.11.84 Balramsingh died at Bhilwara on 28.7.88. On 10.3.89, the appellant applied for succession certificate before the" District Judge, Bikaner. Succession certificate was issued on 10.9.89. Respondent Umadevi filed an application for temporary injunction on the ground that she is a lawful wedded wife of Balram Singh and prayed that the appellant may not withdraw any amount from Bank or post office on the basis of succession certificate. The trial court granted injunction on 5.5.90. Hence, this misc. appeal.

3. This appeal is pending since 7.8.1990. As agreed by the learned Counsel for the parties the case has been finally heard.

4. Mr. K.C. Samdariya, learned Counsel for the respondent has raised a preliminary objection that since the order is passed Under Section 151 C.P.C., misc. appeal Under Order 43 Rule 1 C.P.C. is not maintainable.

5. First of all, I proceed to consider preliminary objection. A bare perusal of the application dated 15.1.90 shows that it has not been mentioned in the application that under which section it has been moved and only 'Sthagan' has been mentioned at the top of application (whether it is under order 39 Rule 1 or Under Section 151 C.P.C), but in para 5 of the application all the conditions enumerated under Order 39 Rule 1 and 2 exist. Thus, the preliminary objection is not sustainable. That apart this Court has power to convert this appeal into revision and the same is treated as revision petition.

6. Mr. H.C. Jain, learned Counsel for the appellant has submitted that the learned trial court is not justified and without his jurisdiction, restrained the appellant from withdrawing amount on the basis of succession certificate even confirmed by the High Court vide order dated 1.9.1990. He has also submitted that the appellant is the only legally wedded wife. The alleged will executed in favour of the respondent has not been submitted by her before the learned MJM with the suit or application on 8.9.1988. He has also submitted that the respondent Uma Devi took possession of the house hold articles at Bhilwara, immediately after the death of Balram Singh on 25.7.89. A complaint was fitted against Uma Devi, but he has not filed any will at that time also nor before the learned Magistrate while taking cognizance against her Under Section 405 Indian Penal Code on 23.12.1988. He has further submitted that original will was never produced by the respondent in the trial court and also in the High court earlier. He has submitted that Section 5 of the Hindu Marriage Act, 1955 provides condition for a valid marriage and Section 5(1) neither party has a spouse living at the time of marriage. And Section 11 of the Hindu Marriage Act, 1955 provides void marriages, it says that "any marriage which is in contravention of any one conditions specified in Section 5(1)(IV)(V) is void". Thus, the so called marriage between the respondent Umadevi and deceased Balram Singh is void and she cannot get any right on account of such void marriage. Mr. Jain, has further submitted that Umadevi w/o Rajesh filed an application Under Section 125 Criminal Procedure Code on 4.4.64 against her husband Rajesh Kumar for maintenance in the court of Addl. Munsif which was ultimately