RADHESHYAM BASAK Vs. SANTOSH KUMAR BASAK

JUDGEMENT

(1.) This Rule was issued on an application under Section 115 of the Code of Civil Procedure and is directed against order No. 14 dated December 8, 1973 passed by Sri A. N. Mitra, District Delegate (6th Subordinate Judge), Alipore, in Succession Certificate Case. No. 119 of 1973.

(2.) The facts of the case, however, cannot be gathered from the application. On going through the order it is seen that the petitioner filed an application under Section 372 of the Indian Succession Act praying for the grant of Succession Certificate in respect of the securities and debts due to the estate of the deceased Gopal Chandra Basak. The opposite parties filed a petition of objection. As such the matter became contested. The learned Court below after examining the oral and documentary evidence on record allowed the objection raised by the opposite parties and consequently the petitioner's application for grant of succession certificate was struck off. Being aggrieved by the aforesaid order, the petitioner has come up before this Court.

(3.) Mr. Amar Prasad Chakraborty, learned Advocate appearing on behalf of the opposite parties, takes a preliminary point to the effect that the application is not maintainable as the same is not supported by an affidavit. Mr. Chakraborty submits that according to the Appellate Side Rules every application before it is filed in Court will have to be presented before the Commissioner of Affidavits who will report as to the sufficiency of stamp and before whom the petitioner or any one authorised on his behalf will have to swear an affidavit about the correctness of the facts stated in the petition. In this case the application is not supported by an affidavit. It was not presented before the Commissioner of Affidavits. There is an endorsement at the bottom of the application by the learned Advocate to the effect that no affidavit is necessary. Mr. Chakraborty further submits that it was not within the rights of the learned Advocate to say whether an affidavit is necessary or not and as such the granting of the certificate by the learned Advocate cannot improve the matter. As the application has not been filed in accordance with the Appellate Side Rules this application should be rejected summarily.