MULUKH RAJ SHARMA Vs. RAJ NARAIN SHARMA

JUDGEMENT

(1.) In this case the only question that requires consideration Is whether the District Judge of Howrah against whose order this Rule has been obtained was right in holding that no appeal lay against the order of the District Delegate Howrah, to Revocation Case No. 209 of 1954. The facts which are relevant for the purpose of this Rule are these:

(2.) On the death of one Saritaram Sharma, opposite parties Nos. 1 and 2 named Rajnarain Sharma and Shyamdeo Sharma obtained a succession certificate for a debt due to the deceased amounting to Rs. 5913/15/6. On 8th of September 1953, the petitioner who describes himself as the brother of the deceased Santaram filed an application for revocation of the succession certificate granted in favour of opposite parties Nos. 1 and 2 but he did not proceed with that application and it was accordingly rejected. On 1st December 1954, the petitioner filed another application for revocation of the succession certificate in favour of opposite parties Nos. 1 and 2 which gave rise to Revocation Case No. 209 of 1954. This revocation case, however, was dismissed for default on 9th July 1955 by the District Delegate of Howrah and against that order dated 9th July 1955, the petitioner filed an appeal before the District Judge. The learned District Judge has dismissed the appeal on the preliminary ground that the appeal against that order was not maintainable.

(3.) Mr. Laik, appearing in support of this Rule, has argued that the learned District Judge failed to exercise a jurisdiction vested in him by law in dismissing the appeal on the preliminary ground that the appeal was not maintainable and he relied upon the provisions, of S. 388 of the Indian Succession Act. Sub-section (1) of Section 388 provides that the Provincial Government may by notification invest any court inferior in grade to a District Judge with power to exercise the functions of a District Judge under Part X of the Indian Succession Act including the power to grant succession certificates. The proviso to Sub-section (2) is to this effect: