SHYAMALI MIDDYA Vs. ANJANA ALIAS HEMANGINI ARI

JUDGEMENT

(1.) Mr. Sahoo, learned Counsel appearing on behalf of the respondents had taken a preliminary objection as to the maintainability of this appeal before this Court. He had referred to section 388 of the Succession Act and had pointed out that the appeal would lie to the learned District Judge from an order passed by the learned District Delegate in view of the proviso to sub-section (2) of section 388.

(2.) Mr. Bhattacharyya, however, contends that he is not aware as to whether the learned Judge was invested with the power in terms of section 388 of the Succession Act, 1925 on the date he had passed the order. Therefore, in such a case, whether the appeal would lie before the learned District Judge or not is difficult to ascertain. However, he does not join issue with regard to the contention of Mr. Sahoo.

(3.) Section 388 creates a special jurisdiction on Court subordinate to the District Judge through investiture of power on the strength of notification issued by the State Government in the Official Gazette. Once such power is invested to a Court inferior to the District Judge, in that event, such Court would discharge the function of a District Judge by reason of such investiture. Now the appeals provided in section 384 normally lies to the High Court. This could have created confusion as to where the appeal would lie from an order passed by a Court invested with the power under section 388 of the Succession Act since such Court discharges the function of a District Court. But the legislature in its wisdom thought it fit to clarify the situation and remove the scope of confusion by enacting the proviso to sub-section (2) and this stands further clarified through sub-section (3). The intention of the legislature is clear and unambiguous and it has been expressed in no uncertain terms, as is apparent from the coining of the expressions, which we prefer to quote :