KARUMARI VENKATA RATNA NARASIMHA RAO Vs. KARUMARI VIMALAVATI

JUDGEMENT

(1.) The simple question in this revision petition is whether permission of the Court is necessary under Order 23, rule 1, Civil Procedure Code, for withdrawing an O. P., under the Indian Succession Act. It should not be forgotten that succession proceedings are summary proceedings and any decision therein in respect of the lights do not preclude the parties to litigate in a regular suit. A succession certificate granted under the Indian Succession Act gives a valid quittance to the debtor, who thereafter is not interested as to who is the rightful owner to claim the debt. If a wrongful owner obtains a succession certificate and claims the debt and is paid, the only remedy for the rightful owner is to file a suit against the wrongful owner obtaining payment and litigate. Section 387 of the Indian Succession Act reads thus:

(2.) The language of this section also makes it clear that the proceedings have not been considered to be a suit; nor are they treated as a suit, so that Order 23, rule 1, Civil Procedure Code, which is applicable to suits, is not applicable to these proceedings. This view is fortified by a decision in Pakiam Pillai v. Innasi Fernand, where Subramania Ayyar, J., held that though the provisions of Civil Procedure Code are applicable to suits under Act X of 1865, section 261, still in that case the application for probate had been withdrawn before the proceedings became contentious and that, therefore, section 373, Civil Procedure Code, was not applicable. It may be noted that section 373, Civil Procedure Code, corresponds to Order 23 of the Civil Procedure Code, 1908.

(3.) In Jugeshwar Math v. Jathdhuri Prasad, a Bench of the Patna High Court held that Order 23, rule 1 does not apply to an application for probate, and that if an executor improperly withdraws an application ior probate, he is not precluded from again undertaking the discharge of his duty in obtaining the finding of the Court on the genuineness of the will. Similarly a Bench of the Calcutta High Court in Jamuna Dasya v. Kailash Chandra, held that Order 23, rule 1, Civil Procedure Code, does not apply to probate proceedings and consequently, when an application for probate of a will is withdrawn, a fresh application for probate will lie even though no leave to file a fresh application is obtained. Mitter, J., at page 637 observed that the provisions of the Civil Procedure Code are to be followed in contentious probate proceedings so far as they may be applicable. This would imply that before the proceedings become contentious, any withdrawal, even without the leave of the Court, does not preclude a party from initiating fresh proceedings. It is clear, therefore, that Order 23, rule 1, Civil Procedure Code, will not apply to the facts and circumstances of this case where even before the respondent joined issue or the matter was set down for trial, an application to withdraw the O. P. was made. I do not think that there was any need for the petitioner to have asked for the permission of the Court to withdraw without which also he could have, on withdrawal, the liberty to file fresh proceedings as and when it was found necessary. Inasmcuh as both the parties have proceeded on a wrong assumption that Order 23, rule 1, Civil Procedure Code, applies and since it was said there was no sufficient reason for the Court to grant leave, the I. A., was dismissed, it is necessary in the view taken by me to clarify that no permission of the Court is necessary for the petitioner to withdraw his O.P. with the above observations, the revision petition is dismissed but in the circumstances without costs. Revision dismissed.