The provisions of Order 9, Rule 9, and Order 17, Rules 2 and 3, of the Code of Civil Procedure, and their applicability to the dismissal of a suit for default.

1. It appears that the opposite parties instituted a probate case before the District Judge of Gaya, alleging that one Sukhlal Singh had died on the 14th November, 1953, leaving behind a will appointing the opposite parties as trustees and executors to manage the property dedicated to Radha Krishna Thakurji. The petitioner filed an objection to the effect that the will was forged and the probate case should be dismissed. Thereafter the probate case was converted into Title Suit No. 1 of 1958. The hearing of the case was taken up and the plaintiff adduced evidence and the defendant also adduced evidence and deposited Rs. 200.00 for the examination of an expert to examine the will. During the hearing of the case opposite party filed a petition to transpose opposite party No. 3 to the category of defendant on the ground that he was gained over. On the 30th June, 1960, opposite party No. 5 filed a compromise petition admitting that the will was forged and that the petitioner was the real owner of the properties in dispute. On the nth July, 1960, the case was taken up for hearing and for consideration of the compromise petition. The compromise was recorded on that date and the suit was disposed of by the Additional District Judge Sri. A. N. Mukherjee, in terms of the compromise petition so far as opposite party No. 5 was concerned and as the other opposite parties did not appear on that date the suit was dismissed for non-prosecution so far as they were concerned. The order of the district Judge dated the nth July, 1960, reads as follows :

11-7-60. Defendant files hazri. Plaintiffs Nos. 3 to 5 who have not compromised the suit take no steps. On the last two dates also, it appears they had taken no steps in the case. The capo has been compromised between plaintiffs Nos. 1 and 2 and the only defendant. The case is called out but none responds on behalf of the plaintiffs Nos. 3 to 5. Lawyer for the defendant is present. Joint petition of compromise filed by plaintiff No. 2 and the defendant dated 30-6-60 put up. Plaintiff No. 1s petition dated 12-9-59 for permission to withdraw from this case along with its rejoinder filed by the other plaintiffs put up. Heard defendants lawyer.

ORDER Let the compromise be recorded and the suit of plaintiff No. 2 be decreed in terms of the compromise. The compromise petition will form part of the decree. The plaintiff No. 1 is permitted to withdraw from the suit and the objection of the other plaintiffs is rejected as not pressed. The suit will stand dismissed for non-prosecution without cost so far as plaintiffs Nos. 3 to 5 are concerned".

2. Two of the opposite parties, Deonandan Missir and Phagu Sao, later on filed an application in the court of the Additional District Judge, Sri K.K. Bose, asking that the order of his predecessor, Sri A.N. Mukherjee, dated the nth July, 1960, should be set aside and the probate case should be restored to its file for being dealt with on merits. This application has been allowed by Sri K.K. Bose on the ground that his predecessor had not written out a judgment under the provisions of Order 17, Rule 3, of the Code of Civil Procedure, and the failure of his predecessor to do so made his order dated the 11th July, 1960, ultra vires and a nullity.

3. The petitioner has now obtained a rule from the High Court, calling upon the opposite parties to show cause why the order of the Additional District Judge, Sri K.K. Bose, dated the 19th June, 1961, should not be set aside in the revisional jurisdiction of the High Court.

4. On behalf of the petitioner it was submitted in the first place that the provisions of Order 9, Rule 9, of the Code of Civil Procedure has no application to a contentious suit for probate of will dismissed for default of the applicant, and, therefore, Sri K.K. Bose had no jurisdiction to set aside the order of his predecessor, Sri A.N. Mukherjee dismissing the probate suit for default on the nth July 1960. In sup- port of his submission learned