Jyotirmay Bhattacharya, J. - (1.) This second miscellaneous appeal has been filed by the appellants challenging an order passed by the learned Appeal Court in the miscellaneous appeal arising out of a proceeding under the Indian Succession Act relating to grant of succession certificate. The District Delegate refused to grant the succession certificate in favour of the applicants/appellants. The said order was challenged by the appellants before the court of the learned District Judge, South 24-Parganas at Alipore. The appeal was dismissed. The order of the learned District Delegate which was challenged in the said appeal was affirmed. Challenging the legality and/or propriety of the said order passed by the learned Appeal Court, the instant second miscellaneous appeal has been filed by the appellants.
(2.) The Stamp Reporter has expressed his doubt about the maintainability of the instant second miscellaneous appeal in view of the provision contained in Section 104(2) of the Civil Procedure Code.
(3.) Mr. Roy, learned advocate appearing for the appellants has drawn our attention to the provision of Section 388 of the Indian Succession Act which, in our view, is the decisive factor to decide the issue as to whether this second miscellaneous appeal will lie before this High Court or not. Section 388(2) and Section 388(3) of the Indian Succession Act are set out hereunder :- "Section 388(2). Any inferior Court so invested shall, within the local limits of its jurisdiction, 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 : Provided that an appeal from any such order of an 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 that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge." "Section 388(3). An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing sub-section shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as applied by section 141 of that Code, be final.";