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Leoh Moses Vs. Solomon Judah Meyer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Civil Extraordinay Application No. 219 of 1924
Judge
Reported inAIR1926Bom139; (1925)27BOMLR1460; 92Ind.Cas.367
AppellantLeoh Moses
RespondentSolomon Judah Meyer
Excerpt:
civil procedure code (act v of 1908), section 115 - high court-revision-order pasted by resident at aden granting letters of administration.;the high court of bombay will not entertain an application under section 115 of the civil procedure code against an order passed by the political resident at aden granting letters of administration. ;rhimbai jamalbhoy v. mariam abdul rasool (1909) 12 bom. l.r. 149, doubted. - - apparently it was noted at the time that a question might arise whether this court was competent to entertain an application under section 115 of the code, as the judgment or order complained against was appealable......this court by leoh moses bin moses enoch levi and hanua menahem baiter, daughter and widow of one moses bin moses, stating that the sons of dawood moses, brother of the deceased moses bin moses had applied to the court of the resident at aden for the grant of the letters of administration with the will annexed of the estate of moses enoch levi, the father of the said moses bin moses. the court of the assistant resident issued citations, and the petitioners filed a caveat against the grant of letters. the assistant resident finding the matter contentious directed under section 75 of the probate and administration act that the petition and the documents should be returned to the applicants for submission to the resident. the court of the resident then issued notices fixing april 17, for.....
Judgment:

Norman Macleod, Kt., C.J.

1. A petition was filed in this Court by Leoh Moses bin Moses Enoch Levi and Hanua Menahem Baiter, daughter and widow of one Moses bin Moses, stating that the sons of Dawood Moses, brother of the deceased Moses bin Moses had applied to the Court of the Resident at Aden for the grant of the letters of administration with the will annexed of the estate of Moses Enoch Levi, the father of the said Moses bin Moses. The Court of the Assistant Resident issued citations, and the petitioners filed a caveat against the grant of letters. The Assistant Resident finding the matter contentious directed under Section 75 of the Probate and Administration Act that the petition and the documents should be returned to the applicants for submission to the Resident. The Court of the Resident then issued notices fixing April 17, for the hearing of the said application, Thereafter because the petitioner did not file an affidavit in support of their caveat within eight days prescribed by rule 600 of the Rules of the Bombay High Court, their objections were invalidated, and therefore, overruled. The petitioners applied to this Court on June 27, 1924, to set aside this order; but the application was rejected on the ground that the order was of an interlocutory nature. On July 14, 1924, the Resident without hearing the petitioners on (heir objections granted letters of administration to the applicants The petitioners applied to this Court to call for the record and proceedings in order that the order might be get aside. A rule was granted. Apparently it was noted at the time that a question might arise whether this Court was competent to entertain an application under Section 115 of the Code, as the judgment or order complained against was appealable. In Rhimbai Jamalbhoy v. Mariam Binte Abdul I.L.R. (1909) 34 Bom. 267 12 Bom. L.R. 149 it was held that this High Court had jurisdiction to interfere in revision with any order passed by the Resident in the exercise of his civil jurisdiction under the Aden Act II of 1864. I feel doubtful whether such an assumption of jurisdiction is warranted under the terms of the Act, but in any event, the case decided by the Aden Court must be one from which no appeal lies. The Aden Court is a Court of final appeal, and the decision in this case is a final judgment or order granting letters of administration to the applicants There would, therefore, be an appeal to the Privy Council, and it is not competent to this Court to deal in revision with such a judgment or order. The rule is discharged with costs.

Coyajee, J.

2. I concur.


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