Court No. - 24
Case :- FIRST APPEAL No. - 565 of 2018 Appellant :- Pawan Kumar And 2 Others Respondent :- Shanti Devi Counsel for Appellant :- Sushil Kumar Mishra,Chandra Prakash Misra
Hon'ble Saral Srivastava,J.
Heard learned counsel for the appellants.
The order impugned in the present appeal is the order passed by the Additional District Judge/Special Judge (Anti-corruption Act) Court No. 2, Gorakhpur in Misc. Civil Appeal No. 102 of 2016.
An appeal was preferred by the appellants under Section 384 of Indian Succession Act, 1925 (herein after referred as "Act, 1925").
Against the order passed by the Additional District Judge, Gorakhpur allowing the application of respondent for grant of succession certificate.
Section 388 of the Act, 1925 provides for investiture of interior courts with jurisdiction of District Court for purposes of this Act.
Section 388(2) of the Act, 1925 provides that any inferior court invested with the jurisdiction of District Court have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this part upon the District Judge, and the provisions of this part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge.
Thus, a plain reading of Section 388 of the Act, 1925 shows that the inferior Court exercises the same power which are vested with the District Judge.
Proviso (2) of Section 388 further provides that any appeal from order of inferior court as is mentioned in sub-Section (1) of Section 384 shall lie to the District Judge, and not to the High Court and the District Judge may pass any order which the High Court can pass under Section 384 (1) of the Act 1925.
Thus, the power exercised by the District Judge under Section 388 (2) of the Act, 1925 is akin to the power of this Court under Section 384 of the Indian Succession Act.
Section 388(3) of the Act, 1925 further provides that the order passed in appeal by the District Judge against the inferior court shall be final.
Thus, in view of the Section 388 of the Indian Succession Act, the present appeal against the order passed by the Additional District Judge, is not maintainable as the order passed by the District Judge is final in view of Section 388(3) of the Act, 1925. Consequently, the appeal is dismissed. However, a liberty is granted to the appellants to take recourse to the remedy which is available to the appellants in law.
If the Rules of the Court permits, the certified copy of the order may be returned to the appellants.
Order Date :- 17.9.2018 Ishan