PRESSY PINTO Vs. RONY MAXIM PINTO

JUDGEMENT

(1.) ORDERS ON THE REFERENCE OF THE LEARNED SINGLE JUDGE when the registry of the High Court, raised objection with regard to maintainability of misc. appeal the occasion arose for reference of the matter to Division Bench to clarify the position. As a matter of fact, the reference by the learned single Judge was because of opinion of another learned single Judge in R. F. A. No. 324/02 holding that the Regular First Appeal was maintainable against the decree in o. S. 2/91 (converted from P and SC 6/89 ). In the said RFA 324/02 by making reference to the decision of Anthony Swamy v. Chowramma, ILR 1989 Kar 1294 the learned judge held that the RFA would be maintainable.

(2.) THE facts that led to the filing of miscellaneous appeal before this Court in brief as under: p and SC 91/2000 came to be filed by the 1st respondent herein against the appellant herein and the said matter came to be contested by the appellant/respondent. Therefore, the P and SC came to be converted as O. S. 14/ 02 in view of S. 295 of the Indian Succession act. When the decree in the said suit came to be challenged by filing miscellaneous appeal, the office raised objection that RFA would be maintainable in view of the observation of learned single Judge on earlier occasion in rfa 324/02.

(3.) SECTIONS 295, 299 of Indian Succession act, 1925 and so also Ss. 96, 104 and O. 43, rr. 1 and 2 of the C. P. C. are relevant for the purpose of appreciating the above matter in the right perspective. Section 295 of the Indian Succession Act reads as under: