IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.655 of 2010 R.B.MEMORIAL SCHOOL OF NURSING, DARBHANGA Versus DR. PRADEEP KUMAR MISHRA @ DR. PRADEEP KUMAR ALIAS PRADEEP MISRA AND OTHERS ----------- For the Petitioner : M/s. Markandeya Singh, Raghunath Singh and Kumar Rajeev, Advocates. ------------ 4. 27.8.2010. This Civil Revision has been preferred against the order dated 21.5.2010 passed in Title Suit No.14 of 2008 arising out of L.A. Case No.52 of 2007 by the Additional District Judge-IX, Patna. A petition was filed on behalf of the petitioner before the court below under Section 284 of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”) to add him as a party in the concerned suit in view of the fact that he has got caveatable interest. The trial court by the impugned order dated 21.5.2010 has rejected the aforesaid prayer of the petitioner. That order has been challenged by filing this Civil Revision. A question with regard to the maintainability of this Civil Revision has been emerged in view of the provisions as contained in Section 299 of the Act which provides an 2 appeal against the all orders passed by the District Judge. The office has pointed out that if a petition filed under Section 284 of the Act is allowed then against that order remedy lies by filing an appeal before this Court. However, if such prayer is refused then no appeal would lie. However, such person, whose prayer to accept him as a caveator has been refused, could maintain an appeal under Section 299 of the Act against the order granting probate in such proceeding. Thus, the office has suggested that in the present case proper remedy against the impugned order seems to be, as held in paragraph-43 of the order passed by a Division Bench of this Court in Durga Devi Vs. Vijay Kumar Poddar {2010(2) PLJR 954}, filing a writ petition under Article 227 of the Constitution of India. Learned counsel appearing for the petitioner has contested the stamp report. Learned counsel for the petitioner submitted that the impugned order passed under Section 284 of the Act refusing to add the petitioner as a party holding that he does not have any caveatable interest would amount to a final order adjudicating the rights of the caveator inasmuch as his wings stand clipped at the very threshold itself. Thus, it is 3 contended that against such order, true it is, Civil Revision would not be maintainable but an appeal would lie in terms of Section 299 of the Act. Learned counsel submits that the Stamp Report in this context that such appeal would only be available at the behest of the aggrieved person if such a petition seeking addition as a party is allowed but if the same is refused then the appeal would not be available under Section 299 of the Act, is erroneous. It would be manifest from the plain reading of the provisions as contained in Section 299 of the Act itself that appeal is provided against every order passed by the District Judge. Learned counsel for the petitioner has placed reliance upon a decision of the Division Bench of this Court rendered in Darogi Singh Vs. Srimati Girja Devi {1978(2) PLJR 287}. For proper appreciation, it would be pertinent to quote the relevant Section 299 of the Act, which is as under: “299. Appeals from orders of District Judge.- Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals.” It would be manifest from the aforesaid provision that every order passed by the District Judge by virtue of 4 powers conferred upon him under the provisions shall be subject to an appeal to the High Court in accordance with the provision of the Code of Civil Procedure. This provision clearly stipulates and speaks about “every order” made by a District Judge. The issue has already been set at rest by a Division Bench of this Court in Darogi Singh (Supra). It has been held that though an appeal may not lie even against an interlocutory order, however, when the District Judge by virtue of the powers conferred upon him under the Act decides the caveatable interest of the party, the right of such party stands finally decided and, thus, appeal would lie as per the provisions as contained in Section 299 of the Act. The relevant passages of the aforesaid decision are quoted as under: “5. xxxxxxxxx. In my opinion this is putting too narrow an interpretation on the wide provision of the said section. If the legislature intended that to be the only contingency in which an appeal could be preferred to the High Court against an order of the District Judge, it would have specifically said so and would not have expressed itself in the manner it has done by using the words “Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court.” In my opinion, the words “in accordance with the provisions of the 5 Code of Civil Procedure, 1908, applicable to appeals” only indicate that appeal to the High Court against an order of the District Judge made by him by virtue of the powers conferred under the Act upon him shall be preferred in the manner and according to the procedure prescribed in the Code with respect to presentation of appeals. I do not, however conclude that an appeal would lie even against an interlocutory order which is inconsequential so far as the rights or claims of the parties are concerned. But an order by which the District Judge finally rejected the prayer of an objector claiming to have an interest in the estate of the deceased to be allowed to enter caveat, is certainly an order against which an appeal would lie to the High Court by virtue of the provision of Section 299 of the Act.” “20. xxxxxxxx. Under Section 299 of the Act, every final order made by District Judge under the Act shall be appealable to the High Court in accordance with the provisions of the Code of Civil Procedure. In the present case, the order against the caveator (appellant) has become final between the parties. By the impugned order, the trial court held that the appellant is not entitled to contest the validity of the will as he has no interest in the estate of the deceased. The impugned order passed by the learned Additional District Judge has become final so far as the right of the appellant to contest the suit is concerned. If it is so, the impugned order of the learned Additional District Judge is appealable under Section 299 of the Act read with Section 104 of the Code of Civil Procedure (hereinafter referred to as „the Code‟). Section 104 of the Code provides three classes of order to be appealable. The first class of order is mentioned in Section 104 of the Code, the second class of order is mentioned therein as “save as otherwise expressly provided in the 6 body of this Code” and the third class of order is also mentioned therein as “or by any law for the time being in force.” The present case will come under the purview of third class. If any law provides that an appeal shall lie against any order passed under that law, such orders shall be appealable under the third category mentioned in Section 104 of the Code. Section 299 of the Act provides that all orders passed by the District Judge under the Act shall be appealable to the High Court in accordance with the provisions of the Code of Civil Procedure. Hence, I hold that if Section 299 of the Act is read alongwith Section 104 of the Code, then it is clear that an appeal shall lie against every final order made by the District Judge under the provisions of the Indian Succession Act.” Thus, from the aforesaid decision it is quite clear that the order deciding the right of the caveatable interest of the parties either allowing the same or rejecting the same would amount to a final decision regarding such right of the parties and the same would be appealable in terms of the provisions as contained in Section 299 of the Act and the same would lie under the third category of Section 104 of the Code of Civil Procedure, which provides that appeal would be available against the orders described in the section save as otherwise expressly provided in the body of this Code or by any law for the time being in force. In the above view of the matter, I overrule the 7 Stamp Report to the aforesaid extent and hold that in case of refusal of rights of the party regarding caveatable interest an appeal would be maintainable against the impugned order under Section 299 read with Section 104 of the Code of Civil Procedure. Thus, in the present case Civil Revision would not be maintainable but an appeal under the aforesaid provision would lie. Learned counsel for the petitioners seeks permission to convert this Civil Revision into a Miscellaneous Appeal. Permission is accorded. Let the learned counsel for the petitioners convert this Civil Revision into a Miscellaneous Appeal within three weeks, failing which this Civil Revision shall stand rejected as not maintainable without further reference to a Bench. P.S. ( Dr. Ravi Ranjan, J)