RANCHI, India, Dec. 11 -- Jharkhand High Court issued the following order on Nov. 11:

1. The instant Misc. Appeal has been filed under Section 299 of the Indian Succession Act against the order dated 21.02.2018 passed by learned District Judge-IV, Jamshedpur, in Original Suit No.04 of 2015 (arising out of Probate Case No.12 of 2014), whereby and whereunder, probate has been granted with respect to the registered WILL dated 08.04.2009 executed by Late Pushpawati Sahu in favour of Shanti Devi (Respondent No.1).

2. A preliminary objection has been raised on behalf of the respondent(s) regarding the maintainability of the instant Misc. Appeal under Section 299 of the Indian Succession Act.

3. It is contended that since the matter proceeded as a suit, therefore, First Appeal will lie and not a Misc. Appeal as Section 299 of the Indian Succession Act speaks about the application of CPC in hearing the appeals. Reliance in this regard is placed on 2017 SCC OnLine Pat 3960 [Kusheshwar Purbey & Ors. Vs. Shri Shri 108 Ram Janaki Jee S & Ors.] wherein it has been held that the First Appeal will lie against the judgment delivered in a testamentary suit and not Misc. Appeal.

4. I find force in the argument advanced on behalf of learned counsel for the appellant that for an appeal to be maintainable under Section 96 of the CPC, it should be preferred against the judgment and decree which reads as under:

"Appeal from original decree.

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees".

Further, decree has been defined under Section 2(2) of the CPC which reads as under:

"Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

a. any adjudication from which an appeal lies as an appeal from an order,

b. any order of dismissal for default.

Explanation -

A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=rC8SUFuyEFsvB5V61cXUrILMupqetRfufh8%2BwNiDwL%2FYn6oHKhzSiD7C05t%2Fu6Lm&caseno=MA/216/2018&cCode=1&cino=JHHC010128072018&state_code=7&appFlag=)

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