ap17.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPEAL FROM ORDER NO.17 OF 2009 Yamunabai wd/o Vitthal Udare & others .. APPELLANTS VERSUS Baby @ Babita wd/o Vitthal Udare & others .. RESPONDENTS Mr. Anand Chawre, advocate for the appellants. Mr. R.P. Adgaonkar, advocate for respondents. ===== CORAM : R.M. BORDE, J. DATE : 11 th MARCH, 2011. PER COURT : 1 Learned counsel appearing for the respondents has invited my attention to the judgment in the matter of Vitthal Ramchandra Mali & others vrs. Laxmi Ganpati Mali & others reported in 2006(4) Bom.C.R. 31 and contended that as the impugned order is passed by the Civil Judge, Sr.Dn., Latur on 4-11-2008 under section 372 of the Indian Succession Act directing issuance of succession certificate, the appeal against said order shall lie to the District Judge. It is observed by the learned Single judge in the aforesaid judgment thus :- ap17.09 2 9 In view of this position, the Civil Judge, Senior Division in these two Appeals have exercised the jurisdiction under sub-section (1) of section 388 of the said act of 1925. In view of the proviso to sub-section 2 of section 388, the Appeals under section 384 of the said Act of 1925 against the order of the learned Civil Judge, Senior Division will therefore lie to the District Judge and not to this Court. By virtue of the proviso to sub-section 2 of section 388 of the said Act of 1925 in case of all appealable orders passed on Application for succession certificate by the Courts referred to sub-section (1) of section 388, the Appeal will lie to the District Judge irrespective of the value of the subject-matter of the Application for grant of succession certificate. The reason being that the forum of Appeal is created by the proviso to sub-section (2) of section 388 of the said Act of 1925 and not by the provisions of said Act of 1869. 2 In view of the legal position as enumerated above, the appeal from order needs to be returned back for proper presentation. Office is therefore directed to return the memorandum of appeal alongwith accompaniments for proper presentation to the appropriate forum. Appellant shall take steps for presentation of appeal to the District Court, within the time prescribed in that behalf. Appeal from order stands disposed of accordingly. Record and proceeding be transmitted back to the District Court, Latur, forthwith. ( R. M. BORDE ) JUDGE dyb