1 M.A. No. 4182/2010 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA Misc. Appeal No. 4182/2010 ....APPELLANT/: Rajesh Wadhwani RESPONDENT aged about 46 years, s/o Late Shri B.P. Wadhwani R/o: 32, Nishatpura, Bhopal (M.P.) -Versus- ....RESPONDENTS : 1. Shyamnath Sharma Non-applicants aged about 42 years, s/o Shri N.N.Sharma, R/o: E-5/137, Arera Colony, Bhopal (M.P.) 2. Anoop Shukla aged about 30 years, s/o Shri Pandit Balkrishna R/o: Flat No.3, D Block, Shanti Enclave, Chuna Bhatti, Valmik Road, Bhopal (M.P.) 3. Deepak Shukla aged adult s/o Shri Pandit Balkrishna R/o: Flat No.3, D Block, Shanti Enclave, Chuna Bhatti, Valmik Road, Bhopal (M.P.) 4. Ku. Raj Shukla aged about 45 years, s/o Shri Pandit Balkrishna R/o: Flat No.3, D Block, Shanti Enclave, Chuna Bhatti, Valmik Road, Bhopal (M.P.) 5. Arvind aged about 40 yrs, s/o Shri Pandit Balkrishna R/o: Flat No3, D Block, Shanti 2 M.A. No. 4182/2010 Enclave, Chuna Bhatti, Valmik Road, Bhopal (M.P.) 6. Smt. Vandana Sharma, aged about 32 yrs, s/o Shri Pandit Balkrishna R/o: Flat No3, D Block, Shanti Enclave, Chuna Bhatti, Valmik Road, Bhopal (M.P.) 7. Smt. Archana aged about 38 yrs, s/o Shri Pandit Balkrishna R/o: Flat No3, D Block, Shanti Enclave, Chuna Bhatti, Valmik Road, Bhopal (M.P.) 8. General Public ------------------------------------------------------------------------------ Shri Ashok Lalwani, learned counsel for the applicant. Shri R.K. Verma, learned counsel for the respondent no.1 ------------------------------------------------------------------------------ O R D E R { 02-05-2011 } 1. This Misc. Appeal has been filed by the appellant who had filed objections in the application filed by the respondents under Section 372 of Indian Succession Act, 1925 (in short, the Act of 1925) against the remand order passed by learned 9th Additional District Judge, Bhopal in Misc. Appeal No. 58/2010. 2. A preliminary objection has been raised by Shri Verma, learned counsel for the respondent no.1 that this 3 M.A. No. 4182/2010 Misc. Appeal has been filed under Order 43 Rule 1(u) of the Code of Civil Procedure. According to learned counsel this provision is triggered and set in motion only if a decree is drawn up while remanding the case by the learned Appellate Court to the Court below under Rule 23 or Rule 23A of Order XLI. Learned counsel submits that since a decree was not drawn up and indeed it could not have been drawn up because proceedings under Section 372 of the Act would not come within the ambit and sphere of 'decree' as defined under Section 2(2) of CPC, therefore, this miscellaneous appeal which has been filed under Order 43 Rule 1(u) is not maintainable. 3. Shri Lalwani, learned counsel for the appellant submits that this Court may exercise suo motu powers to convert this Misc. Appeal into a writ petition under Article 227 of the Constitution of India. In this context, he has placed reliance on a decision of Supreme Court in Nawab Shaqafath Ali Khan Vs. Nawab Imdad Jah Bahadur (2009)5 SCC 162. 4. On merit also, Shri Lalwani has addressed this Court and submitted that respondent no.1 who was applicant in the Succession Court came forward on two grounds just 4 M.A. No. 4182/2010 like double barrel gun for grant of succession certificate. Firstly on account of his adoption by Asharani Sharma and her husband Vidyaratan Sharma when he was six months old. Secondly, on the basis of a will dated 02.01.2005 executed by Smt. Asharani Sharma after the death of her husband in his favour. Thereafter, it has been contended by Shri Lalwani that in the application under Section 372 of the Act of 1925, the respondent no.1 has come forward only on the basis of adoption and not on the basis of the will and the story of will has been put forth by him only during the time of evidence. Further, it has been contended by him that learned First Appellate Court has erred in remanding the matter. 5. On the other hand, Shri Verma by replying on merit submitted that indeed there is no finding of the Succession Court that whether there was an adoption or not and, therefore, no interference is required in the impugned order. 6. Considered the contentions of learned counsel for the parties. 7. On bare perusal of the Order 43 Rule 1(u) CPC, this Court finds that an appeal could be filed under this 5 M.A. No. 4182/2010 provision only when a decree has been drawn up by the Appellate Court. Since no decree was drawn up by Appellate Court and indeed it was not required to be drawn up in the proceedings under Section 372 of the Indian Succession Act, this appeal is not maintainable and the same is misconceived. At this juncture, by placing reliance on the decision of Nawab Shaqafath Ali Khan (supra), learned counsel submits that this Court may exercise suo motu powers to convert this appeal into a writ petition under Article 227 of the Constitution of India, however, I am not inclined to exercise that power. At this juncture, on bare perusal of said decision (para 36) this Court finds that Supreme Court has held that once the civil revision application was held to be not maintainable ordinarily the High Court should not have entered into the merits of the matter. Since the word 'ordinarily' has been put emphasis by the Apex Court, I am of the view that still this Court can hear the appeal on merit. Hence, although it is hereby held that this appeal is not maintainable and indeed a petition under Article 227 of the Constitution of India should have been filed but on merit also, the order is taken into consideration. 6 M.A. No. 4182/2010 8. On bare perusal of the order of learned Succession Court dated 9.4.2010, this Court finds that although in para 1 of the Succession application, the respondent no.1/ applicant has come forward that he was adopted by Asharani Sharma but there is no finding of learned Succession Court in this regard although he has simply stated the testimony of some of the witnesses of the parties. Indeed, since this was the pivotal question to be decided by the learned Succession Court and by not giving any finding whether there was an adoption or not, I am of the view that learned First Appellate Court did not err in setting aside the impugned order and remanding the case to learned Succession Court to give a fresh finding on all the points. However, it is made clear that the Succession Court shall re-decide the case in terms of the order of remand passed by learned First Appellate Court without recording any evidence after hearing the learned counsel for the parties. 9. Resultantly, this appeal fails and is hereby dismissed with cost. Counsel fee Rs.2000/-, if pre-certified. The 7 M.A. No. 4182/2010 parties are hereby directed to appear in the Succession Court on 16th May, 2011. (A.K. SHRIVASTAVA) JUDGE rao 8 M.A. No. 4182/2010 M.A. No. 4182/2010 02.05.2011 Shri Ashok Lalwani, learned counsel for the applicant. Shri R.K. Verma, learned counsel for respondent no.1. They are heard. Order dictated. Signed and dated separately. (A.K. SHRIVASTAVA) JUDGE rao 9 M.A. No. 4182/2010