MOSAMATT PARMESHWARI DEVI Vs. GEETA DEVI

JUDGEMENT

(1.) Both the Cases are taken up together as both arise out of the common judgment passed in Succession Certificate case No. 150/97 and 173/97.

(2.) Heard the learned counsel for both the sides on the interlocutary applications filed on behalf of the respondent No. 1 Geeta Devi, in both the cases which are kept at flag 'Y', wherein, it has been stated that the appellant preferred the instant first appeals against the order dated 2-12-1999 passed in Succession Certificate Case No. 150/97 and 173/97 by the District Delegate-cum-Sub-Judge, Ist, Dhanabad, who has been delegated the powers of the District Judge under S. 388 of the Indian Succession Art. 1925 (hereinafter to be referred as 'Act'). It has further been stated that under S. 388 (2) of the Act, the appeal will lie before the District Judge against the order passed by the Sub-ordinate Judge exercising the powers of the District Judge delegate. It has, therefore, been prayed that the memorandum of appeal may be returned to the appellants for presentation before the competent Court or in the alternative the stay granted by this Court vide order dated 28-6-2000 may be vacated.

(3.) A rejoinder has been filed on behalf of the appellants stating therein that the petition filed by the respondent no for vacating the order of stay to return and to return the memo of appeal to the appellants for presentation before the competent Court is not maintainable and fit to be dismissed. It has been stated that the appeal has been filed under S. 384 of the Indian Succession Act, 1925 and according to the provisions of S. 384, an appeal shall lie to the High Court. It has further been stated that in the judgehsip of Dhanbad district, the powers for disposal of the Succession cases has been delegated to the Sub-ordinate Judge by issuing Notification and as such, the Sub-Ordinate Judge is performing the function of the District Judge under the Act, as if it were a District Judge and in that view of the matter, the appeal will lie in the High Court against the order passed by the district Delegage-cum-Sub-judge, Ist, Dhanbad. That apart, it has been stated that the claim is for a sum of Rs. 1,66,184/- and the appeal has also been valued at Rs. 1,66,184/- and in that view of the matter also, the District Judge has got no power to entertain an appeal where the valuation is morethan rupees one lakh. On the aforesaid ground it has been prayed that the interlocutory application filed on on behalf of the respondent No. 1 should be rejected.