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Ghulam Rasool Vs. Javed Rasool and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberRevn. Petn. No. 84-A of 1981
Judge
Reported inAIR1983J& K8
ActsJammu and Kashmir Succession Certificate Act, 1977 Smvt - Section 19; ;Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13 - Order 47, Rule 1
AppellantGhulam Rasool
RespondentJaved Rasool and anr.
Appellant Advocate A. Qayoom, Adv.
Respondent Advocate K.N. Bhat, Adv.
DispositionRevision dismissed
Excerpt:
- .....kotwal, j. 1. this revision petition raises an interesting question of law i. e. whether the remedy of an application for setting aside an ex parte order granting succession certificate is avail-able to the aggrieved party. 2. the petitioner made an application for grant of succession certificate in his favour in respect of certain debts and securities belonging to his deceased wife mst. hajra. on this, the additional district judge at srinagar, issued a notice in some local newspaper inviting objections from all those who wanted to contest this application. javed rasool and javed riaz. the two sons of the deceased mst. haira, who are respondents 1 and 2 herein, were made parties to the aforesaid applications. they not having appeared despite service, ex parte proceedings were.....
Judgment:
ORDER

I.K. Kotwal, J.

1. This revision petition raises an interesting question of law i. e. whether the remedy of an application for setting aside an ex parte order granting succession certificate is avail-able to the aggrieved party.

2. The petitioner made an application for grant of succession certificate in his favour in respect of certain debts and securities belonging to his deceased wife Mst. Hajra. On this, the Additional District Judge at Srinagar, issued a notice in some local newspaper inviting objections from all those who wanted to contest this application. Javed Rasool and Javed Riaz. the two sons of the deceased Mst. Haira, who are respondents 1 and 2 herein, were made parties to the aforesaid applications. They not having appeared despite service, ex parte proceedings were taken against them. The learned Additional District Judge eventually passed an order on 25-2-1981 that the certificate prayed for be issued in favour of the petitioner. On the following day, respondent No. 1, moved an application for setting aside the aforesaid order. To this, objections were invited from the petitioner who resisted the same on a number of grounds. The learned Additional District Judge eventually overset his earlier order dated 25-2-1981. Aggrieved thereby, the petitioner challenged the same in this revision petition on the grounds; firsly, that after the impugned order dated 25-2-1981 came to be passed, there were no proceedings pending before the learned Additional District Judge, that could be possibly set aside; secondly, that the aforesaid order could have been overset either by making a reference to the High Court under Order 46, or by reviewing the same himself under Order 47, C P. C. but not otherwise; and thirdly, that even if any such powers were to be assumed in him, still he could not have set aside the aforesaid order, except on a sufficient cause being shown by respondent No. 1.

3. It is not necessary to go into the other contentions raised on behalf of the petitioner, for the petition can be disposed of on the solitary ground that remedy of an application for setting aside an ex parte order granting a succession certificate was not available to respondent No, 1 under the Succession Certificate Act, 1977, hereinafter the Act. Proceedings under the Act, there can be no manner of doubt, are original in character. Consequently, the procedure laid down in the Code of Civil Procedure shall apply to all such proceedings with the aid of Section 141 of the Code. Even so, this procedure will not be applicable, if there is something in the Act which is inconsistent with the procedure laid down in the Code of Civil Procedure. This is amply borne out from Sub-section (1) of Section 4 of the Civil P. C. which reads as under :--

'In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.'

4. Section 19 of the Act provides that an appeal from an order granting or refusing or revoking a certificate under the Act shall lie to the High Court. Sub-section (3) of Section 19, however, restricts the remedies open to a party to challenge a certificate granted under the Act to either a reference in terms of Order 46 read with Section 113 or a review of the order in terms of Order 47, or a revision to the High Court under Section 115 of the Civil P. C. This sub-section reads as under:--

'(3) Subject to the provisions of Sub-section (1) and of Orders 46 and 47 and Sections 113 to 115 of the Code of Civil Procedure as applied by Section 141 of that Code, an order of a District Court under this Act shall be final.'

5. On the plain terms of Section 19, therefore, a party aggrieved of an order, whether ex parte or inter partes, granting succession certificate under the Act, has the remedies of either going in appeal against the said order, or of a reference or a revision to the High Court for challenging the same. A review of the order by the court itself which grants the certificate is also one of the remedies provided under this Section. No other remedy against such an order is available to the aggrieved party. This subsection being thus inconsistent with the general procedure laid down in the Civil P. C. providing for the additional remedy of an application for setting aside an ex parte decree' or order, the Code cannot apply to proceedings under the Act so as to clothe an aggrieved party with a right to move an application for setting aside an ex parte order granting succession certificate. It is, thus, manifest that respondent No 1 could not have moved an application for setting aside the order dated 25-2-1981.

6. Mr. K.N. Bhat then invited my attention to Section 18 of the Act and argued that under this Section a certificate granted may be revoked even by the court which grants the same. True. a certificate may be revoked by the very court which grants it, but the next question that falls for determination is, by following which remedy Section 18 merely provides the grounds for revoking or setting aside a certificate granted under the Act, but not the remedies which should be followed for achieving the aforesaid object. The learned Additional District Judge could have no doubt revoked his order dated 25-2-1981 but only by following the procedure laid down in Order 47, or by making a reference to the High Court in terms of Section 113 read with Order 46, C. P. C. He could not have entertained an application for setting aside the ex parte order a remedy clearly excluded by Sub-section (3) of Section 19 of the Act.

7. Mr. Bhat then argued that the application moved by respondent No. I could be treated as an application for review, I am afraid, I cannot agree with the learned counsel even here. An order may be overset in review, but only on the specific grounds mentioned in Order 47. These are that the order suffers from an error apparent on its face. or discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the applicant, Or for any other sufficient reason akin to the aforesaid two grounds, I have gone through the application made by respondent No. I. None of the grounds mentioned therein is one that can be said to be covered by the provisions of Order 47. It is an application for setting aside an ex parte order, pure and simple.

8. For the foregoing reasons, the order impugned in the revision petition cannot survive. Allowing the revision petition, I set aside the impugned order and dismiss the application made by respondent No. 1. This will not, however, prevent the respondent from following any other remedy under law, if so advised, which he shall, however, follow subject to all just exceptions by the other side. In the peculiar circumstances of the case, the parties are left to bear their own costs.


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