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Dr. Mrs. I.S. Bose Vs. Mrs. H.N. Judah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appl. No. 353 of 1957 in First Appeal No. 65 of 1946
Judge
Reported inAIR1958All672
ActsSuccession Act, 1925 - Sections 295; High Court Rules; High Court Orders; Allahabad High Court Rules - Rule 2
AppellantDr. Mrs. I.S. Bose
RespondentMrs. H.N. Judah
Appellant AdvocateNaziruddin, ;Mohd. Husain, ;N. Banerji, ;M.M. Lal and ;Suraj Sahai, Advs.
Respondent AdvocateS.C. Das and ;S.P. Avasthi, Advs.
DispositionApplication rejected
Excerpt:
.....the district judge in which there is a contention, the proceedings will take, as nearly as may be, the form of a regular..........the civil judge, mohanlalganj, in this court. this was treated as a first civil appeal against a decree and costs were taxed in accordance with the rules of the court. 2. objection has now been taken that the proceedings in this appeal were only in the nature of an appeal from an order and as such costs should not have been taxed on the scale provided for taxation of costs in first appeals from decrees. the stamp reporter has referred to a division bench decision of this court reported in miss eva mountstephens v. mr. hunter garnett, ilr 35 all 448 (a) in which a similar question arose and it was held that the proceedings should be treated as a suit and if they are so treated an order passed in such proceedings will be a decree. 3. the learned counsel for the applicant has, however,.....
Judgment:

Randhir Singh, J.

1. This is an application for amendment of a decree under Section 152 of the Code of Civil Procedure. It appears that the applicant in the present case filed an application under Section 363 of the Indian Succession Act, for revocation of the letters of administration. This application was contested & ultimately an appeal was filed against the judgment of the Civil Judge, Mohanlalganj, in this Court. This was treated as a first civil appeal against a decree and costs were taxed in accordance with the Rules of the Court.

2. Objection has now been taken that the proceedings in this appeal were only in the nature of an appeal from an order and as such costs should not have been taxed on the scale provided for taxation of costs in first appeals from decrees. The Stamp Reporter has referred to a Division Bench decision of this Court reported in Miss Eva Mountstephens v. Mr. Hunter Garnett, ILR 35 All 448 (A) in which a similar question arose and it was held that the proceedings should be treated as a suit and if they are so treated an order passed in such proceedings will be a decree.

3. The learned Counsel for the applicant has, however, cited another Division Bench decision of this Court reported in Kanhaiya Lal v. Gendo : AIR1928All51 . It appears that the earlier Allahabad case was not cited before the learned Judges who decided this later case and a different view was taken. We have examined the two reported cases carefully, but with great respect to the learned Judges who decided the later case, we find ourselves in agreement with the view taken in the earlier case, ILR 35 All 448 (A).

4. Contested applications for probate and letters of administration have been classed along with first appeals for the matter of taxation in this Court under the Rules of the Court, Chapter 16, Rule 2. This is an indication of the fact that matters arising out of probate and letters of administration which take the shape of a suit ought to be treated on the same level as other first appeals from decrees.

5. It has been held in : AIR1928All51 , that the words of Section 83 of Act 5 of 1881, and Section 261 of Act 10 of 1865, 'The proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure' show that the proceedings were not in fact proceedings in a suit while the view taken in ILR 35 All 448 (A) is that the words gave to the proceedings the status of a suit.

6. It appears to us that the interpretation given to these words in ILR 35 All 448 (A) should be accepted, and with great respect we are unable to endorse the interpretation put on these words in : AIR1928All51 . Section 295 of the present Indian Succession Act 39 of 1925, clearly shows that in any case before the District Judge in which there is a contention, the proceedings will take, as nearly as may be, the form of a regular suit.

7. Once the proceedings are treated as proceedings in a regular suit all the incidents of a suit will fasten to such proceedings. An appeal against an order passed in such a suit will therefore be an appeal from a decree and should be treated as such for the purpose of taxation also. The taxation of costs in this case is therefore correct and the application for amendment is rejected. We, however, make no order as to costs.


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