MAHANTA ALIAS ADHIKARI KRUSHNA Vs. STATE OF ORISSA

JUDGEMENT

(1.) ORDER passed by the Civil Judge (Senior Division), Puri in Misc. Case No. 45 of 1999 in allowing application under Order9, Rule 13, CPC is under challenge by the petitioner in this civil revision.

(2.) ON 5.1.1994 petitioner filed Miser. Case No, 1 of 1994 in the Court of District Judge, Puri for grant of Letter of Administration by presenting an application under Section 276 of Indian Succession Act, 1925 (in short, 'the Act'). Petitioner was directed to give valuation statement and the Collector was noticed to have his say in the matter. The valuation statement was accepted without any objection and thereafter the case was transferred to the file of Civil Judge (Sr. Division), Puri and registered as Misc. Case No. 28/1 of 1996/ 1994. Duty Money was paid by the petitioner, citation was issued and ultimately from 4.4.1997 that case was adjourned to 25.4.1997 for hearing, but on the application of the petitioner the case was advanced and heard ex parte on 8.4.1997. Thereafter, on 4.5.1997 order was passed granting Letter of Administration. The aforesaid application for Letter of Administration was with respect to the 'Math' and 'Math properties' on the basis of a will said to have been executed by late Mohanta Adhikari Paramananda Das of 'Sata Asan Giridhari Math' situated at Bali Sahi, Puri. The said Mohanta was said to have died on 26.7.1983 at Bhubaneswar. In course of the ex parte hearing, petitioner examined himself as P.W. No. 2 and another witness, viz., Mahant Srinibas Das as P.W. No. 1. The Registered Will was marked as Ext. 1 and the signature of the scribe and the attesting witness so also the executors were marked on being identified by P.W. No. 1. As noted in the said ex parte judgment, P.W. No. 1 stated that both the attesting witnesses were dead. However, nothing was stated regarding the scriber of the Will as to whether he was dead or alive by the date of that evidence.

(3.) LEARNED Addl. Govt. Advocate invited attention of the Court to Section 295 of the Act and initially argued that the procedure provided in the CPC for disposal of suit being liable to be followed, the impugned order is not subject to challenge. But he did not pursue that argument since the proceeding was not contentious. However, he argued that even if Order 9, Rule 13, CPC does not apply to the facts and circumstances of the case, then also to decide the issue relating to proper valuation and payment of Duty Money the application filed by the Collector be construed as an application under Section 151, CPC. This Court as well does not find any merit in that contention because the Collector has remedy under Section 19(E) of the Court Fees Act, as per the correct argument advanced by the petitioner.