S. J. Uazifdar, J.

( 1 ) BY consent, the Appeal is admitted and heard forthwith.

( 2 ) THIS is an Appeal against the order of the learned Single Judge dated 10. 7. 2003 by which the learned Judge ordered that the above Miscellaneous petition No. 29 of 2001 does not survive in view of the withdrawal of the above main Petition No. 432 of 2000 and that the order passed in the main Petition granting probate in favour of the Petitioner was therefore revoked and cancelled.

( 3 ) THE Respondent was the Petitioner in the above petition No. 432 of 2000. That Petition was filed by the Respondent for probate of the alleged last Will and testament of one Jairam Wadhumal Alimchandani dated 18. 9. 1996, who died at Texas on 19. 9. 1997. The deceased is the brother of the parties. Under the alleged Will, the Respondent is the executor and the sole beneficiary. The probate was granted, by the order of this Court dated 24. 7. 2000.

( 4 ) THE above Miscellaneous Petition No. 29 of 2001 was filed for revocation of the probate dated 24. 7. 2000. The above Petition was filed in the probate Petition itself as is clear from the title.

( 5 ) THE impugned order in the above Petition was a cbnsent order. Evidence was lead in the matter, parties were examined and cross-examined. Arguments were thereafter heard by the learned Single Judge. Before the judgment could be delivered, the respondent who was represented by counsel, sought leave to withdraw the Probate Petition and agreed to the probate being cancelled and withdrawn. He further stated that he had no objection to the Will being declared null and void and ineffective. Lastly, the Respondent also agreed to compensate the petitioner by paying her a sum of Rs. 50,000/- as compensation. In view of this application on behalf of the Respondent, the impugned order was passed. It. is necessary to set out the operative part of the order.

"order 1. This Petition No. 29 of 001 how does not survive in view of the withdrawal of main Petition no. 432 of 2000, and the order passed therein by this Court granting probate in favour of original petitioner Nanik alimchandani is, therefore, reversed and cancelled. 2. It is declared that the Will relied upon by the Nanik alimchandani in that petition is null and void will having no effect to affect the right in the property in fvour of said Nanik alimchandani in any manner whatsoever. Consequently, the petition no. 29 of 2001 does not survive as the purpose for which it was filed is achieved by withdrawal of main Petition no. 432 of 2001. 3. Undertaking given by original petitioner Nanik Alimchandani, voluntarily and after consulting his advocate, is accepted that within four weeks from today he will pay Rs. 50,000/- (Rupees fifty Thousand only) to Savitri by Demand Draft. Petitioner savitri and Respondent Nanik alimchandani in Misc. Petition 29 of 2001 to remain present in this Court on 7th August, 2003 at 2. 45 p. m. If the undertaking is not complied to or respected to, the Respondent Nanik Alimchandani will be liable for prosecution for contempt of Court. Matter is disposed of. "

( 6 ) THE Memo of Appeal makes several allegations against the learned Judge. It is alleged that the learned Judge "summarily observed" that the judgment would be against the fippellant and that the fippellant would be prosecuted. It is alleged that the Appellant agreed to the said order being passed under pressure due to the observations from the court.

( 7 ) IT is important to note that the Respondent was represented before the learned Single Judge by counsel. It is further important to note that, as stated by the Respondent in the Memorandum of Flppeal itself, he was advised by his counsel not to agree to the said order, that the observations of the learned Judge were wrong and that the ftppellant could carry the matter in Appeal if the decision was against him. It is not the Appellant's case that the learned Judge refused to hear his counsel. We do not refer to this as acceptin