Jyotirindra Nath Chowdhury vs Pratima Rani Debi

A.C. Sen, J.—The present Rule is directed against Order No. 47 dated April 4, 1966, passed by the Subordinate Judge, Third Court at Alipore, 24-Parganas, in Other Suit No. 175 of 1965. By the said order, Sri Ramesh Chandra Ganguli, Advocate, has been appointed as administrator pendente lite on the application of the opposite party No. 1 u/s 247 of the Indian Succession Act. According to the Petitioner, there was no necessity for appointing any administrator pendente lite. He, therefore, moved the High Court u/s 115 of the CPC against the aforesaid order appointing Sri Ramesh Chandra Ganguli as administrator pendente lite and the present Rule was issued on January 13, 1966, on that application.

The material facts are stated below: On June 3, 1954, the, opposite party No. 1, Sm. Pratima Rani Debi, as the next friend and natural guardian of her minor son Ashim Chand Roy, opposite party No. 1(a), filed an application in the Court of the District Judge, Alipore, 24-Parganas, for the grant of letters of administration to the estate of deceased Sripati Charan Choudhury, being Act XXXIX Case No. 15 of 1964 of the said Court. The said case having become contentious, was at first numbered as Other Suit No. 35 of 1965 and was, thereafter, transferred to the Third Court of the Subordinate Judge at Alipore and renumbered as Other Suit No. 175 of 1965.

Sripati Choudhury died on December 30, 1952. According to the opposite party No. 1, Sripati Choudhury left behind a will dated January 17, 1952. The original will is not forthcoming. The opposite party No. 1 says that it has been stolen. The opposite party No. 1(a), Ashim Chand, is a legatee under the said will.

The executors named in the said will, being opposite parties Nos. 2 to 4, applied for the probate of the will in or about 1953, being Case No. 4 of 1953. The present Petitioner and others opposed the said application. Thereupon the case was renumbered as Other Suit No. 55 of 1954. Eventually, on February 8, 1960, the said Other Suit No. 55 of 1954 was dismissed for default.

The present application for letters of administration with a copy of the will annexed was filed by the opposite party No. 1 on the footing that the opposite party No. 1(a), Ashim Chand, is the grandson of the testator and a legatee.

The case for the Petitioner is that Sripati Charan Choudhury did not leave any will and that the copy of the will annexed to the petition for the letters of administration is a forgery. He further says that Sripati Charan had no testamentary capacity in January 1952, when, according to the Petitioner No. 1, the will was executed and that the story of the will having been stolen is false.

It is stated in para. 3 of the petition that the opposite party No. 1 filed a petition in the probate proceeding started by the executors in 1953 stating that the alleged will was a questionable document. The opposite party No. 1, however, filed a written statement in the said probate proceeding, namely, O.S. No. 55 of 1954 in the Court of the Third Subordinate Judge, Alipore, admitting the genuineness of the will. The said written statement is annex. ''A'' to the counter affidavit filed by the opposite party 1(a). It is stated therein, that the will is genuine, that it was executed by Sripati Choudhury in good health and in full possession of his senses and that the Defendants have no objection to the grant of probate.

Ashim Chand is the son of one Hirendra Nath Roy, who claims to have been adopted by the deceased, Sripati Choudhury.

The Petitioner instituted a suit, being Title Suit No. 11 of 1961 in the Second Court of the Munsif at Alipore inter alia for a declaration that there was no adoption in law and in fact of Hirendra Nath Roy, father of Ashim Chand, as his son and that the Petitioner and pro-forma Defendants Nos. 3 and 4 in the said suit were the sole heirs and successors of the deceased Sripati Choudhury. The said suit was dismissed by the learned Munsif. The Petitioner preferred an appeal being Title Appeal No. 234 of 1962 which was heard by the 8th Subordinate Judge, who by his judgment and decree dated May 31, 1953, dismissed the said appeal. The learned Subordinate Judge accepted the story of adoption but held that the adoption of Hirendra Nath by Sripati Choudhury was invalid according to the rules of Hindu law. The learned Subordinate Judge, however, dismissed the appeal on the view that the Plaintiff (the Petitioner before us) was not entitled to any relief in the suit as the suit was barred by limitation.

The wife of Sripati Choudhury and Hirendra Nath, father of the opposite party No. 1(a), both died during the life-time of Sripati Choudhury.

In para. 4(f) of the counter-affidavit on behalf of the opposite party No. 1(a) it is stated that the will, executed on January 17, 1952, was registered by Sripati Choudhury on January 22, 1952 and that all the properties of the testator were bequeathed to the opposite party No. 1(a) absolutely subject to certain Deva-seva and maintenance charges.

Paragraph 4(g) of the counter-affidavit of the opposite party 1(a) runs thus: In a Misc. case being Misc. Case No. 7 of 1951 of the Second Court of the Subordinate Judge at Howrah, arising out of an execution proceeding the said Sripati Choudhury examined himself on commission. During his deposition on March 2, 1952, the said Sripati Choudhury admitted that he adopted my father Hirendra Nath Choudhury as his son after proper ceremonies. He further admitted that he executed a will and registered the same on January 22, 1952, but the said will was stolen. During his evidence he filed a certified copy of the said will and admitted the same to be his will. I crave leave to refer to the certified copy of the evidence of the said Sripati Choudhury.

It transpires that the Petitioner has instituted a suit being Title Suit No. 44 of 1964 of the Sixth Court of the Subordinate Judge at Alipore for declaration of his title to the properties left by the deceased Sripati Choudhury and for recovery of the properties in the said suit on the allegation that the adoption of the father of the opposite party No. 1(a) was invalid. The title suit, viz. Title Suit No. 44 of 1964 has been instituted for the recovery of certain properties left by Sripati Choudhury, which, according to the Petitioner, were wrongfully sold by the opposite parties 1 and 1(a).

The opposite party No. 1(a) has in his turn instituted another suit being Tide Suit No. 33 of 1964 of the Third Court of the Subordinate Judge, Alipore, for the declaration, of his title to the properties left by Sripati Choudhury. In this suit, namely, Title Suit No. 33 of 1964, the opposite party No. 1(a) applied for the appointment of a receiver of the properties mentioned in Schedule A to the present application for the appointment of an administrator pendente lite. The said application for the appointment of a receiver was dismissed by the learned Subordinate Judge.

It may be mentioned that in the probate proceeding started by the executors mentioned in the will, being Other Suit No. 55 of 1954 of the Third Court of the Subordinate Judge at Alipore the executors were appointed as administrators pendente lite and thereafter, Sri Arabinda Barman, pleader, was appointed administrator pendente lite by an order dated April 23, 1954. A proceeding u/s 145 of the Code of Criminal Procedure ended in favour of the Petitioner and his sons as against the then administrator pendente lite and his men.

In the present probate proceeding the administrator pendente lite has been appointed in respect of the properties mentioned in Schedule A to the petition u/s 247 of the Indian Succession Act. It is stated in the said petition that the area of the khas lands mentioned in Schedule A as 165 bighas, yielding 650 mds. of paddy per year. This fact is not seriously disputed by the Petitioner.

As stated above, the opposite party No. 1(a) applied for the appointment of a receiver in Title Suit No. 33 of 1964. The properties mentioned in Schedule A to the petition u/s 247 of the Indian Succession Act are also the properties involved in the said Title Suit No. 33 of 1964. The said application for the appointment of receiver was dismissed by the learned Subordinate Judge by his order No. 19 dated December 21, 1964. It is contended on behalf of the Petitioner that the application for the appointment of a receiver having been dismissed, there is no justification for the appointment of an administrator pendente lite. The said application for the appointment of a receiver was dismissed primarily on the ground that the will of Sripati Choudhury, which is the foundation of the claim of the Plaintiff in that suit, who is the opposite party No. 1(a) before us, had not been probated. The material portion of the order is quoted below:

I shall first see whether Plaintiff has a prima facie case. The copy of the registered will has been filed in this case. The Defendants challenge this will as a forged one. There was a proceeding for grant of probate (O.S. No. 55 of 1954); that suit was allowed to be dismissed for default. Plaintiff has also started a proceeding under Act XXXIX for grant of letters of administration (Act 39 Case No. 15 of 1964). That case is still pending. Admittedly, there was no grant of probate. Besides, until letters of administration are granted, it cannot be said that the Plaintiff has acquired any title to the suit property.

The learned Subordinate Judge took into consideration the petition filed by opposite party No. 1 in Other Suit No. 56 of 1954 wherein the will in question was characterised by the opposite party No. 1 as questionable document, as well as the finding in Title Appeal No. 234 of 1962, that the adoption of the father of the opposite party No. 1(a) by Sripati Choudhury was invalid. The learned Subordinate Judge ultimately came to the conclusion "that the prima facie case of the Plaintiff is extremely weak". Hence the application for the appointment of the receiver was rejected as, in the opinion of the learned Subordinate Judge, the prima facie case of the Plaintiff in that suit, that is to say, the opposite party No. 1(a), was extremely weak and the said opinion of the learned Subordinate Judge was primarily based on the fact that the first proceeding for the grant of probate was dismissed for default and the subsequent proceeding for the letters of administration was still pending. But a probate Court cannot refuse to appoint an administrator pendente lite simply because the probate proceeding is still pending or because an earlier probate proceeding was dismissed for default. Therefore, having regard to the primary reason for which the learned Subordinate Judge, in Title Suit No. 33 of 1964, refused to appoint a receiver, it cannot be said that the application for the appointment of receiver was rejected the application for the appointment of an administrator pendente lite too, should be dismissed.

The next objection of the Petitioner is that the title of Sripati Choudhury in respect of (he suit properties not being admitted, the Court acted in excess of its jurisdiction in appointing an administrator pendente lite. In our opinion, this objection is with out substance. In para. 11 of the petition u/s 247 of the Indian Succession. Act the opposite party No. 1 clearly stated that the de ceased had left various properties as described in Schedule A thereunder. The Petitioner''s rejoinder to this assertion in his petition of objection, runs thus:

With regard to paragraph 11 of the petition under reply the Petitioner states that the deceased Sripati Choudhury left properties which have not been included in the Schedule Annexed to the petition with mala fide motive and as such the application for grant of Letters of Administration should be refused.

Hence, it is not the Petitioner''s case that the properties, mentioned in Schedule A to the petition u/s 247 of the Indian Succession Act, are not the properties appertaining to the estate of the deceased. According to him, there are other properties of the deceased which have not been included in the said schedule. The Petitioner, therefore, admits the title of Sripati to the properties mentioned in Schedule A to the petition u/s 247. This objection of the Petitioner also fails.

Another objection of the Petitioner is that the opposite party No. 1 in Other Suit No. 55 of 1954 had herself admitted, in a petition supported by an affidavit subsequent to the filing of her written statement, that the will in question was a questionable document. The application in question was filed by the opposite party No. 1 by way of objection to the order of ad interim temporary injunction passed on March 17, 1956. By that order the opposite party No. 1 was restrained from withdrawing the sum of Rs. 5,734 5-3 p. deposited by her on July 13, 1955, to save her Belur property which was sold on June 22, 1955 in the Title Execution Case No. 30 of 1950 of the Second Court of the Subordinate Judge at Howrah in execution of a decree passed in Title Suit No. 19 of 1947 against Sailabasini Debi, wife of Sripati Choudhury. The administrator pendente lite appointed in Other Suit No. 55 of 1954 applied for injunction, on the footing that the said Belur property formed part of the estate left by Sripati Choudhury. The sale was set aside at the instance of O.Ps. 1 and 1(a) who were substituted on the death of Sailabasini.

The petition in question gives a detailed history of the various legal proceedings initiated, in vain, by Sripati Choudhury for the purpose of establishing his title to the Belur property on the footing that Sailabasini was his benamdar. It is a lengthy petition wherein the opposite parties, before us, contended that the Belur property really belonged to them, that the said sum of Rs. 5,734-5-3 p. was deposited by them to save the Belur property and that, therefore, the order of injunction should be vacated. The will was characterised as questionable in the first sentence of para. 7 of the said petition, which runs thus:

That the said Sripati Choudhury died on 30-12-52 and after his death Sri Ajit Ray, son of Sri Suresh Ray, claiming to be one of the executors appointed under the alleged will of Sripati Choudhury, applied for probate of the said questionable will in this suit wherein he deliberately and falsely included the Belur property and some other properties in the application for probate as belonging to the estate of Sripati Choudhury which really belonged to Sailabasini Debi and on her death to your Petitioner and her son Defendants 1 and 2 as her stridhan heirs with a view to usurp and swallow up the minor''s estate in conspiracy with his father and others named in the alleged will.

There is no reference to the will in any other part of this lengthy petition. Being disgusted and dissatisfied with the conduct of the administrator pendente lite and in order to support her title to the Belur property, the opposite parties before us stated casually that Ajit Ray "applied for the probate of the said questionable will." In our opinion no importance should be attached to such stray remark made by the opposite parties to vindicate their title to the Belur property. By word ''questionable'' they really meant ''alleged''. The word ''alleged'' has been used before the word ''will'' in other parts of the sentence quoted above. Moreover, in a sense the will is questionable, because its genuineness and validity have been questioned by the Petitioner himself. The first sentence of para. 7 of the said petition by no means amounts to an admission on the part of the opposite parties, that the will itself is questionable. This objection of the Petitioner, therefore, fails.

Next, it is contended on behalf of the Petitioner that the Petitioner and his sons being in possession of the disputed properties in their own right, their possession should not be disturbed. The learned Advocate for the Petitioner refers us to two cases: Jogendra Lal Chowdhuri v. Atindra Lal Chowdhuri (1909) 13 C.L.J. 34, Bhuban Mohini Debi v. Kiran Bala Debi (1910) 13 C.L.J. 47. In the first case it has been laid down that, before an administrator pendente lite is appointed, the Court must be satisfied that the appointment is necessary and proper and that appointment cannot be claimed as a matter of course because the proceedings are contested. In the second case too, it has been laid down that an administrator pendente lite will be appointed only when the Court is satisfied that such appointment is necessary to preserve and protect the estate. Their Lordships did not take into consideration who was in possession of the estate of the deceased, whether the person in possession claimed any legal right to the properties and how far such possession was likely to be disturbed by the appointment of an administrator pendente lite. If the question of possession were relevant, their Lordships would have applied their mind to that question. The only test laid down is whether appointment is necessary to preserve and protect the estate of the deceased. Mookerjee, J. in the second case observed as follows:

Section 34 of the Probate and Administration Act provides that pending any suit touching the validity of the Will...the Court may appoint an administrator of the estate of such deceased person. It is manifest from the language used by the Legislature, that the Court has a discretion in the matter. No doubt the exercise of such discretion is judicial and not arbitrary; that is, if circumstances are established which justify the appointment of an administrator pendente lite, it is the duty of the Court to make such appointment.

Section 247 of the Indian Succession Act is substantially the same as Section 34 of the Probate and Administration Act, 1881. Therefore, the principles laid down in the two cases mentioned above are still good law. Whenever the Court is satisfied that the appointment of an administrator is necessary, an administrator is to be appointed. There is nothing in Section 247 which says, that even when the Court is satisfied that such appointment is necessary for the preservation and protection of the estate, no administrator can be appointed when the estate of the deceased is in the possession of his heirs on intestacy in assertion of their right of inheritance.

In the instant case we find that the executors allowed the suit touching the validity of the will, namely, O.S. No. 55 of 1954 to be dismissed for default. They, thereafter, took no further steps for obtaining a probate of the will. The Petitioner instituted a suit, being Title Suit No. 11 of 1961 to establish that he and two sons of his two paternal uncles were the heirs of Sripati Choudhury and that the adoption of the father of the opposite party No. 1(a) by Sripati Choudhury was invalid, but the said suit was dismissed The appellate Court, no doubt, dismissed the suit but held that the adoption was invalid. Therefore, it is not definitely known who will inherit the property of Sripati Choudhury on intestacy. The Petitioner has instituted a fresh suit being Title Suit No. 44 of 1964 for the recovery of certain properties of Sripati sold by the opposite party No. 1(a). The opposite party No. 1(a) in his turn has filed a suit being Title Suit No. 33 of 1964 to establish his title to the properties mentioned in Schedule A to the petition u/s 247, Indian Succession Act. It is doubtful, whether the decision of the appellate Court in the appeal arising out of Title Suit No. 11 of 1961 that adoption of the father of the opposite party No. 1(a) by Sripati, was not valid, will operate as res judicata. Therefore, it cannot be said that admittedly the Petitioner is one of the heirs of Sripati on intestacy. The opposite party No. 1(a) claims the estate of Sripati both under the will as well as as an heir on intestacy. It transpires that certain properties, appertaining to the estate of Sripati, have already been sold away by the opposite party No. 1(a). The Petitioner has instituted a suit for the recovery of those properties and the opposite party No. 1(a) has instituted a suit for the recovery of the properties in the possession of the Petitioner and his sons. Then again, an administrator pendente lite was appointed during the pendency of the suit touching the validity of the will, arising out of the application for probate, filed by the executors. There was a proceeding u/s 145 of the Code of Criminal Procedure between the said administrator and the Petitioner. The administrator obtained an order of injunction, restraining the opposite parties before us from withdrawing a certain sum from the executing Court on the allegation that the money formed part of the estate of the deceased. The Belur property, mentioned above, was also the subject-matter of dispute between the opposite parties before us and the administrator pendente lite.

Having regard to the long series of litigation over the properties left by Sripati, it is difficult to believe that the said properties are being properly managed. Therefore, the learned Judge is quite justified in saying that the properties in dispute are not being properly managed. In para. 9 of the objection filed by the Petitioner in the Court below, he has himself accused the opposite parties of devastating the estate of the deceased. It has been stated therein that the opposite party No. 1(a) with an ulterior motive has mentioned only some of the properties left by Sripati and that he has sold away the bulk of the properties to different persons. The Petitioner admits therein that he has instituted Title Suit No. 44 of 1964 for declaration of his title and for recovery of possession of the properties left by Sripati. In para. 9 of the petition u/s 247, it has been stated that opposite party No. 1(a) had to pay the dues of the estate to save the lands from certificate sale. The reply is as follows:

That the statement made in para. 9 of the petition is absolutely false. The dues of the estate are regularly paid by this Defendant and not by the Plaintiff....

There is no reference to certificate sale. The Petitioner admits in his objection to the petition u/s 247 that he is appropriating the produce of the lands in dispute.

From the facts narrated above we are satisfied that the appointment of an administrator pendente lite is absolutely necessary for the management and protection of the properties in dispute as well as the other properties, if any, left by Sripati. We, therefore, find no reason to interfere with decision of the Court below.

We now take up the question as to the maintainability of the present petition u/s 115 of the Code of Civil Procedure. If an order appointing an administrator pendente lite is appealable, its validity cannot be challenged by an application u/s 115, Code of Civil Procedure.

Section 299 of the Indian Succession Act provides as follows:

Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908, applicable to appeals.

The word ''hereby'' in our opinion means ''by this Act'', that is to say, by the Indian Succession Act. An administrator is appointed u/s 247 of the Indian Succession Act. Therefore, an order appointing an administrator is certainly an order made by virtue of powers conferred by the Indian Succession Act. Therefore, on the language of Section 299 the present order appointing the administrator pendente lite appears to be appealable.

Mr. Datta, appearing on behalf of the opposite parties, has not raised any objection as to the maintainability of the present petition u/s 115, Code of Civil Procedure; on the contrary, he contends that application u/s 115, Code of Civil Procedure, is the proper remedy. According to him, the word ''order'' in Section 247 only refers to a final order. He relies on Proshad Narain Singh v. Dulhin Genda Koer (1913) 18 C.L.J. 612, which says that no appeal lies against an order refusing caveator to oppose an application for probate on the ground, that he has no locus standi. He also drawn our attention to the following passage in the judgment of Das, J. in Paresh Chandra Das v. Bidhu Bhusan Banerjee (1955) 1 Cal. 429,

in my opinion, the preliminary order holding that a person has locus standi is not appealable at the stage.

see the case of Lakhi Narain Shaw v. Multan Chand Daga (1912) 16 C.W.N. 1099. The mere use of the words "every order made by District Judge by virtue of the powers hereby conferred on him" occurring in Section 299 of the Act does not mean that an appeal lies from every interlocutory order made in course of the proceedings. It is only a final order under the provisions of the Indian Succession Act which is appealable u/s 299 of the Act. Even assuming that an appeal lies only from a final order, there is no reason why an order appointing an administrator should not be held to be final.

Mr. Mukherjee, on behalf of the Petitioner, has referred in this connection to the case of Sarat Chandra Pal v. Benode Kumari Dassi (1915) 20 C.W.N. 28. There a Hindu widow, who had obtained letters of administration to the estate of her deceased husband, applied u/s 90 of the Probate and Administration Act for permission to sell the dwelling house for the purpose of satisfying debts. The application which was opposed by the reversioner having been granted, the reversioner appealed. A preliminary objection was taken as to the maintainability of the appeal. The order was held to be appealable u/s 86 of the said Act, re-enacted as Section 299 of the Indian Succession Act. D. Chatterjee, J. gave the following reason for his decision on the preliminary objection:

Section 86 of the Act provides that every order made by a District Judge by virtue of the powers conferred by the Act upon him shall be appealable to the High Court under the Rules contained in the CPC applicable to appeals. The order made by the lower Court is an order made under the powers conferred by Section 90. There is some difficulty, however, about the reference to the Code of Civil Procedure. The CPC provides for appeals against decrees and specified orders. The order is not one of the specified orders but it may be looked upon as a decree which is an adjudication of the rights of the parties which is final so far as the Court making it is concerned. Here the order decides the necessity for the sale in the presence of the reversioner who is the only party interested in preventing the sale or impeaching it for want of legal necessity. This order may, therefore, be looked upon as one analogous to a decree and is, therefore, appealable.

In the instant case the only party interested in opposing the appointment of the administrator pendente lite is the Petitioner. As the order, appointing administrator, has been passed in his presence, the order may, therefore, be looked upon as one analogous to a decree and is, therefore, appealable.

The question may be considered from another point of view. The CPC provides for appeals not only against orders specified in the CPC but also against other orders. Section 104, Code of Civil Procedure, opens thus:

An appeal shall lie from the following orders and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders.

Clause (ff) refers to an order u/s 35A, Clause (g) refers to an order u/s 95, Clause (h) refers to an order imposing a fine or directing arrest and Clause (i) refers to any order made under rules from which an appeal is expressly allowed by rules.

The Indian Succession Act is a law for the time being in force. Section 299 of this Act says that every order made by the District Judge by virtue of the powers conferred upon him by the Act shall be subject to appeal to the High Court. Though such an order does not fall within any of the clauses of Section 104, Code of Civil Procedure, still it is appealable because the Indian Succession Act expressly provides otherwise. In other words, such an order falls within the saving clauses of Section 104, Code of Civil Procedure.

The position is that u/s 104, Code of Civil Procedure, three categories of orders are appealable and no others: (i) Orders specified in the various clauses of Section 104; (ii) Orders made appealable by express provision in the body of the Code of Civil Procedure; (iii) Orders expressly made appealable by any law for the time being in force.

An order, passed by the District Judge by virtue of the powers conferred upon him by the Indian Succession Act, falls in the third category. Therefore, an order passed by the District Judge, being made appealable by the Indian Succession Act, a law for the time being in force, is really appealable in accordance with the pro visions of the CPC applicable to appeals. Therefore, such an order is appealable not because "it may be looked upon as a decree", but because it falls within the saving clause of Section 104, Code of Civil Procedure. In other words, such an order is appealable even if it may not be looked upon as a decree. From this point of view all orders passed by the District Judge by virtue of the powers conferred by the Indian Succession Act become appealable. But according to the cases decided by our High Court as well as by other High Courts, Orders relating to the locus standi of a caveator, are not appealable, being merely interlocutory in nature.

But the present order appointing administrator pendente lite cannot be said to be a mere interlocutory order. It finally disposes of, so far as the lower Court is concerned, the question of appointing an administrator pendente lite. Again, there is nothing in Section 104, Code of Civil Procedure, which takes away the right of appeal against an order touching the appointment of an administrator pendente lite.

It may, further, be pointed out that in Jogendra v. Atindra Supra, the validity of an order appointing an administrator pendente lite was challenged by way of appeal and not by an application u/s 115, Code of Civil Procedure. In Brindaban Chandra Shaha v. Sureswar Shaha Pramanick (1909) 10 C.L.J. 263 also the validity of an order, refusing to appoint an administrator pendente lite, was challenged by way of appeal. It is true that in these two cases no objection was taken as to the maintainability of the appeal but that is immaterial. They show that in our High Court an order touching the appointment of an administrator pendente lite has been treated as appealable. We, accordingly, hold, for the reasons stated above, that the impugned order, in the present case, is appealable.

We, however, do not intend to discharge the Rule on that technical objection, especially when no such objection has been taken on behalf of the opposite parties. It may further be pointed out that the Petitioner has also preferred an appeal against the impugned order by way of abundant caution. We propose to treat the application for revision u/s 115, Code of Civil Procedure, as a memorandum of appeal. The court-fee paid for the application is more than sufficient for the memorandum of appeal. The application having been filed within the time prescribed for filing an appeal, there is no question of limitation. The appeal certainly involves question of law. The appeal is accordingly admitted under Order 41, Rule 11. All the parties being present before us, there is no necessity of serving the notice of the appeal upon the Respondents. The matter has been argued at length even on questions of fact. There is no necessity of hearing the appeal afresh. The application u/s 115, Code of Civil Procedure, converted into an appeal from order, is hereby dismissed on merits. The Rule, necessarily, stands discharged. The connected appeal, namely, F.M.A.T. No. 1875 of 1966, is also, hereby, dismissed. There will be no order for costs.

Let the records go down as early as possible.

Chakrabarti, J.

I agree.