GHULAM RASOOL Vs. JAVED RASOOL
HIGH COURT OF JAMMU AND KASHMIR
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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.";
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