JUDGMENT
Jamuar, J.
1. This is an appeal against an order of the District Judge of Saran, dated the 11th June, 1949, in Revocation Case No. 51 of 1949.
2. The facts relevant to this appeal are these. On the 18th September 1947, One Mt. Suraj Devi had filed an application for the grant of a succession certificate in respect of a certain Provident Fund money lying in deposit in the name of her deceased husband. The application was allowed on the 6th February 1943. Thereafter the appellants before us who are alleged to be the brothers of the deceased husband of Mt. Suraj Devi, filed an application on the 31st May 1949 for revocation of the succession certificate granted to Mt. Suraj Devi. This application was rejected by the learned
District Judge on the 11th June 1949 and it is against this order that the present appeal has been presented.
3. Mr. Gopal Prasad who appears for the respondent has taken a preliminary objection that no appeal lies. He has referred to Section 384 of the Indian Succession Act which is the section which provides for appeals. Sub-section (1) of that Section is as follows :
“Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under tnis Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted.”
The argument is that an appeal has been provided, against an order granting, refusing or revoking a certificate, but not against an oraer refusing to revoke a certificate, Mr. B. C. De who appears for the appellants contended that an appeal lies and in support of his argument he referred to the Civil Procedure Code. Under Order XLIII, Rule 1 (r) of the Code of Civil Procedure an appeal is provided from an order passed under Rule 1 of Order XXXIX. Rule 1 of Order XXXIX provides that under certain conditions “the Court may by order grant a temporary injunction.” The contention of Mr. De is that the provisions of Order XLIII, Rule 1 (r) have been interpreted to mean that even where a Court refuses to grant a temporary injunction the order is appealable. Hence by that analogy he contends that when under Section 384 of the Indian Succession Act an order revoking a certificate has been made appealable, an order refusing to revoke a certificate has been made appealable, an order refusing to revoke a certificate is also appealable. I am unable to accept this contention. Clearly, under Rule 1 of Order XXXIX a Court may grant a temporary injunction or may refuse it and both orders have been made appealable under Rule 1 (r) of Order XLIII of the Code. Such however, is not the case with regard to the provisions of Section 384, Sub-section (1) of the Indian Succession Act. This view finds support from decisions of the Allahabad and the Bombay High Courts. Reference may be made to the cases of ‘KRISHNA KUMARI v. Naubehar Singh’, AIR (18) 1931 All 242 (2) and ‘AHMED EBRAHIM v. Government of the Province of Bombay’, AIR (30) 1943 Bom 50.
4. In this view of the matter, I am of the opinion that no appeal lies.
5. Mr. De, however, asks us to treat this appeal as an application in civil revisional jurisdiction and we have examined the order complained against in that light.
6. As stated above, the application for revocation was filed on the 31st May 1949 and it was ordered to be put up on the 2nd June 1949. On the 2nd June 1949, the Court below called for the record of the original succession certificate case by the 11th June 1949 and ordered the applicants to file the necessary requisites for the issue of notice. On the 3rd June 1949 the applicant in the Court below filed a petition praying for the issue of a temporary injunction restraining Mt Suraj Devi from withdrawing the Provident Fund money lying in deposit in the name of her de-ceased husband and this application was ordered to be put up with the record of the original succession certificate case. No date was fixed either for fee hearing of the original application for revocation of the succession certificate or for the hearing of the application for the issue of a temporary injunction. It appears, however, from the order-sheet that the learned District Judge took up the application for revocation of the succession certificate on the 11th June 1949 and ultimately rejected that application. It nowhere appears if any intimation had been given to the applicants of the fact that the application for revocation of the succession certificate would be taken up on the 11th June 1949 and from a perusal of the order-sheet it does not appear that any such date had been fixed for that purpose. Neither does it appear that the appellants were heard on the 11th June 1949 before the order was passed. In the circumstances I am of opinion that the order passed by the learned District Judge on that date is an order passed without jurisdiction and it is necessary to interfere with that order in our re-visional jurisdiction.
7. The order of the District Judge dated the 11th June 1949 is accordingly set aside and the case is remanded to him for disposal according to law; and pending orders by the District Judge Mt. Suraj Devi is restrained from withdrawing the Provident Fund Money which she seeks to withdraw. In the circumstances there will be no order for costs.
Rai, J.
8. I agree.