1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. MISC.CIVIL APPLICATION N O.129/2008 (Review). In SECOND APPEAL NO.104 OF 2006 (DECIDED). APPLICANTS: 1) Smt.Kamal wd/o Sahebrao Gawande, aged about 36 years, 2) Ku.Sneha Sahebrao Gawande, aged about 6 years. Applicant no.2 is a minor who is represented by her natural guardian mother, i.e. appellant no.1. Both r/o Wadgaon, C/o Shri Keshavrao, P.Sable's House, Tq. and Distt.Yavatmal. ..vs.. NON-APPLICANTS: 1) The Executive Engineer, M.S.E.B.Division Office, Karla Road, Pusad, Distt.Yavatmal. 2) Ramdas Ramkrushna Gawande, aged about 52 years, R/o Balaji Ward, Pusad, Distt.Yavatmal. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr.M.A.Vaishnav, Adv.for the applicants. Mr.P.A.Deshmukh, Adv.for the non-applicants 2 CORAM: C.L.PANGARKAR,J. DATE : 13th AUGUST, 2008. ORAL ORDER. 1. This is an application for review of the order passed by this court, whereby second appeal preferred by the applicants is dismissed in limine, as not maintenable. 2. The present applicants are the original non- applicants in M.J.C. No.28/2000. The present non- applicants had filed an application under Section 372 of the Indian Succession Act, 1925 against the present applicants. The application came to be granted. The present applicants preferred an appeal before the District Judge being Reg.Civil Appeal No.47 of 2004. The appeal came to be dismissed. Hence, the present applicants preferred second appeal No.104 of 2006 before this court. The said appeal came to be dismissed in limine. It is against this order that this present review application is preferred. 3. The undisputed fact is that the application for 3 grant of Succession Certificate was contested by the present applicants. The valuation of the said application was more than Rs.3,00,000/-, as can be seen from the judgment of the trial court. Obviously, for both reasons the application came to be tried by Civil Judge (Senior Division). Para 305 of the Civil Manual published by this High Court reads as follows - “305. (i) Under Section 265 of the Indian Succession Act, 1925, the High Court has appointed all Civil Judges to act for the District Judge as delegates to grant probate and letters of administration in non-contentious cases arising within the local limits of their respective jurisdiction. (ii) In exercise of the powers conferred by Section 28-A(1) of the Bombay Civil Courts Act (XIV of 1869), the High Court has invested all Civil Judges (Senior Division), with all the powers of a District Judge to take cognizance of any contested proceeding under Indian Succession 4 Act, 1925, arising within the local limits of their respective jurisdiction that may be transferred to them by their respective District Judges. (iii) In exercise of the powers conferred by Section 28-A(1) of the Bombay Civil Courts Act (XIV of 1869), the High Court has invested all Civil Judges (Junior Division) with all the powers of a District Judge in the matter of issuing Succession Certificate limited to debts and securities to the extent of their pecuniary jurisdiction. 4. It is thus clear that the High Court utilising the powers under Section 265 of the Indian Succession Act and Section 28A of Bombay Civil Courts Act, 1869 has invested Civil Judges (Senior Division) with power to try and decide the contested cases under Indian Succession Act, while non-contentious cases are to be tried by Civil Judge (Junior Division) to the extent of their pecuniary jurisdiction. Thus, all contentious proceedings under the Indian Succession Act are to be tried by Civil Judge 5 (Senior Division) while the non-contentious proceedings are to be tried by the Civil Judge (Junior Division). 5. Shri Vaishnav, learned counsel for the applicants, contends that this court committed an error in holding that there is no provision for second appeal. He relied on provision contained in Section 28A of Bombay Civil Courts Act as well as decision of the Karnataka High Court (AIR 2002 Karnataka pg.248) . Section 28A of the Civil Courts Act reads thus - 28A. Power to invest (Civil Judges) with jurisdiction under certain Acts. (i) The High Court may by general or special order invest any [Civil Judge], within such local limits and subject to such pecuniary limitation as may be prescribed in such order, with all or any of the powers of a District Judge or a District Court as the case may be under the Indian Succession Act, 1865, the Probate and Administration Act, 1881, or paragraph 3 of Schedule III to the Code of Civil Procedure, 1908. (2) Every order made by a (Civil Judge) by 6 virtue of the powers conferred upon him under sub-section (1) shall be subject to appeal to the High Court or the District Court according as the amount or value of the subject-matter exceeds or does not exceed [fifty thousand rupees]. 3) Every order of the District Judge passed on an appeal under sub-section (2) from the order of a [Civil Judge] shall be subject to an appeal to the High Court under the rules contained in the Code of Civil Procedure applicable to appeals from appellate decrees.] 6. Shri Vaishnav laid stress on sub-section 3 of Section 28A of the Act. If this provision is read carefully, obviously an appeal could lie against appellate decree. Appellate decree in the instant case is one passed by the District Judge. Shri Deshmukh, learned counsel for the non-applicants, contended that Section 384 of the Indian Succession Act puts restrictions on number of appeals and speaks of reference and revision. Section 384 reads as follows- 7 “384. Appeal – (1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted. (2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (5 of 1908). (3) Subject to the provisions of sub- section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied by section 141 of that Code, an order of a District Judge under 8 this Part shall be final. 7. Section 384(3) no doubt speaks of only reference or revision but then the State of Maharashtra by amending the Civil Courts Act has specifically dealt with the provisions of appeal under the Indian Succession Act. Section 28A deals with the jurisdiction under certain Acts and specially under the Indian Succession Act. It specifically says that every order of District Judge passed against the order of Civil Judge shall be subject to an appeal to the High Court under the Rules contained in Civil Procedure Code applicable to the appeals from the appellate decrees. As stated earlier, Section 28A deals with cases instituted under Indian Succession Act and when the Section itself speaks of appeal against the appellate decree, it must be interpreted to mean that the Second appeal does lie to the High Court. 8. Shri Deshmukh, learned counsel for the non- applicant, contended that this court cannot review the order even though the order passed by this court may have been passed due to the wrong conclusions. The 9 review can certainly be entertained where a mistake has occurred. However, a review may not be possible to substitute a view. In the instant case, it was certainly the mistake on the part of the court not to have considered the provision of Section 28A of the Bombay Civil Courts Act. In view of this, the submission of the learned counsel that review is not maintenable is not correct. 9. However, it appears to me that the District Judge has erroneously entertained an appeal against the order of the Civil Judge (Senior Division). In this case particularly, the judgment of the Civil Court in M.J.C.No.28 of 2000 shows that the valuation of the proceedings was Rs.3,34,318/-. The appeal should have, therefore, been filed by virtue of provision contained in Section 26 of the Civil Courts Act to this court and not before the District Judge, the value being more than Rs.2,00,000/-. The order as passed by the District Judge in appeal, however, cannot be said to be void by virtue of provision of Section 21 of C.P.C. Section 21 of C.P.C. 10 clearly says that such objections should be raised at the earliest. It appears that no objection with regard to the competence of the District Judge was raised. In any case, the order does not become void as it is not an order by court inherently lacking jurisdiction. It is merely an error of law not rendering the decree or order void. It is, therefore, not the jurisdictional error in the sense taking of cognizance of dispute which is prohibited from being taken. In the circumstances, I am of the considered opinion that the order passed by this court needs to be set aside and reviewed. In view of this, the review application is allowed. The order passed by this court on 15/1/2008 is set aside. The appeal be listed before the appropriate Bench for admission of the appeal. JUDGE. chute 11