DOUGHLAS GARDEN WILSON Vs. NONE

JUDGEMENT

(1.) THIS is an application to recall/review the order dated 4.5.2007 passed in CRP No. 319 of 2003. In the aforesaid Revision the petitioner challenged the order dated 23rd August, 2003 passed by the learned Civil Judge (Senior Division), Bhubaneswar in Probate Misc. Case No. 8 of 2003 as a District Delegate dismissing the petitioner's prayer for grant of probate on the ground of maintainability in view of Section 287 of the Indian Succession Act, 1955 as there is no contention, as to transmit.

(2.) LEARNED counsel appearing for the petitioner has fairly submitted that Section 18 of the Orissa Civil Courts Act, 1984 provides for a proceeding under the Indian Succession Act, 1925 and as per the said Section, the Civil Judge has the jurisdiction to consider the dispute. Since the civil revision was disposed of with a finding that the Civil Judge has no jurisdiction to dispose of the non -contention matter, the same is an error apparent on the face of the record which may be reviewed even though the order dated 4.5.2007 was passed in favour of the petitioner. Learned counsel for the petitioner further submitted that it is his duty to point out the clear position of the law. From the above submission of the learned Counsel for the petitioner and after examining the materials, it is revealed that earlier this Court issued a Notification dated 2nd November, 1961 in exercising the power conferred by Section 23 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887) and authorized the Courts of all Principal Subordinate Judges to try and dispose of proceedings for grant of probates and letters of administration under the Indian Succession Act, 1925 (Act 39 of 1925).

(3.) THE Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887) was repealed when the Civil Courts Act, 1984 came into existence. Section 25 of the Orissa Civil Courts Act, 1984 provides for a saving clause. In view of Section 25(2) which begins with a non -obstante clause and as per the said Sub -section, even though the earlier Act was repealed, the notification and rules framed under the earlier Act are deemed to have been made under the Act, 1984. Thus, the High Court has earlier authorized the principal subordinate judges to try and dispose of all the proceedings under the Indian Succession Act, 1925 and the said notification was continuing even after the Civil Courts Act, 1984 came into force.