Provisions of Order IX, Rule 13 of the Code of Civil Procedure are applicable to probate proceedings.

A.N.Mukharji, J.

1. This revision is directed against the order dated 20-12-1968 passed by the District Judge of Saran setting aside an ex parte order dated 25-4-1966 in Revocation Case No. 7 of 1965.

2. One Ramauva Tiwary obtained a probate of a will dated 15-4-1889 executed by Nand Kumar Tiwary. common ancestor of the parties. The petitioners filed a petition before the District Judge, Saran, for revocation of the aforesaid probate of the will under Sec.263 of the Indian Succession Act. The said application was registered as Revocation Case No. 7 of 1965. The contention of the petitioners in the revocation case was that Ramagva Tiwary in collusion with others filed the probate case without impleading the petitioners as party to the proceedings and hence they prayed for revoking the grant of probate. It is alleged that the opposite party did not appear in spite of service of notice on them and hence the matter was taken up ex parte for hearing before the District Judge who by his order dated 25-4-1966 allowed the prayer of the petitioners and the grant of the probate of the will in question was revoked.

3. Thereafter, the opposite party filed an application under O. IX, Rule 13 of the Code of Civil Procedure for setting aside the ex parte revocation order passed by the District Judge on 25-4-1966. The learned District Judge, on a consideration of the evidence adduced before him held that there was sufficient cause for the non-appearance of the opposite party when the Revocation Case No. 7 of 1965 was called out for hearing. Accordingly, the learned District Judge by his order datod 20-12-1968 set aside the ex parte order passed in Revocation Case No. 7 of 1965.

4. Being dissatisfied with the aforesaid order passed by the District Judge on 20-12-1968, the petitioners have come up to this Court in revision and the only point which has been urged in this case is whether the learned District Judge had any jurisdiction to set aside the ex parte revocation order passed in Revocation Case No. 7 of 1965. In other words, the contention of learned counsel, appearing for the petitioners, is that provisions of Order IX. Rule 13 of the Code of Civil Procedure are inapplicable to the probate proceedings. In support of this contention reliance is placed on the case of Gorakh Ahir V/s. Jamuna Ahir. reported in AIR 1943 Pat 281. In this case, no doubt, their Lordships have observed that provisions of Order 9 Rule 9 of the Code of Civil Procedure have no application to a case for grant ol probate of a will. On the basis of this decision, it has been strenuously argued on behalf of the petitioners that provisions of Order 9. Rule 13 of the Code of Civil Procedure as well should be held to be inapplicable to probate proceedings and that the learned District Judge had no jurisdiction to set aside ex parte revocation order by taking recourse to the provisions of Order 9, Rule 13 of the Code

5. It may be stated that Sec.141 of the Code of Civil Procedure lays down that "the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of Civil Jurisdiction". To the similar effect is the provision of law laid down in Sec.268 of the Indian Succession Act which recites as follows:

"The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure. 1908."

On reading these two provisions of the law referred to above, it follows that the Code of Civil Procedure will apply to all proceedings before the District Judge in relation to the granting of probate and letters of administration so far as the circumstances of the case permit.

6 In the case reported in AIR 1943 Pat 281 referred to above, their Lordships of the Patna High Court relied on the case of Ramani Debi V/s. Kumud Bandhu