A. K. SEN, Sudhir Ranjan Roy

( 1 ) THIS appeal arising out of a probate proceeding raises a short but tricky point, not hither to introverted but to some extent clouded by a host of judicial decisions, some touching the point rather tangentially and some hooding conflicting views. The point has been raised from time to time till recent years demanding meticulous judicial care and attention but still leaving scope for some controversy.

( 2 ) THE petitioner appellant before us as executor of he will left by one Sarala Bala Dasi, started a proceeding for the probate of the said will before the District Delegate art Rampurhat, being Probate Case No. 36 of 1980.

( 3 ) A dispute having been raised by the opposite party, a daughter of Sarala Bala, regarding he genuineness of will, the matter became contentious and on August 8, 1980 the application was registered as Probate Case No 56 of 1980 before the learned District Judge, Birbhum.

( 4 ) THE case was set down for hearing on June 2, 1983 before a learned Additional District judge but he petitioner having failed to appear when it was called on for hearing, he case was dismissed for default.

( 5 ) ON June 27, 1983 the petitioner started a Misc. Judicial Case under Rule 9 of Order 9 read with S. 151 of the Code of Civil Procedure, being Case No. 5 of 1983 for setting aside the order of dismissal and for the restoration of the probate case to file. The petitioner's case inter alias was that due to his illness he could neither attend the Court on the date fixed for hearing nor could he take any other step.

( 6 ) THE opposite party contested the case and one of the grounds taken by her was that he provisions of Order 9 Rule 9 and S 151 of the Code were inapplicable to a probate proceeding. This preliminary ground found favor with he learned Additional District judge and by his impugned order dated February 14, 1984, he dismissed the petitioner's case upon the view that Order 9 Rule 9 of the Code has no application to a probate proceeding.

( 7 ) IT is against this order that the petitioner has came up is appeal.

( 8 ) APPEARING on behalf of the appellant, it was submitted by Mr. Mukherjee that applying the provisions of S. 141 of the Code and Ss. 268 and 295 of the Indian Succession Act the learned Court below should have held that provisions of the Civil Procedure Code including those of Order 9, applied to a probate proceeding Regarding the applicability of S. 141 of the Code he submitted that the rules laid down in Order 9 being matter of procedure the provisions of rule 9 of the said order were clearly applicable to a probate proceeding in view of S 141. This apart S. 268 of the Indian Succession Act, according to him, clearly made he provisions of the Code applicable to a probate proceeding and under S. 295 of the said Act a contentious probate proceeding assumes the form and character of a regular suit as under the Code of Civil Procedure and such proceedings are regulated by the said Code. That being so, the learned judge in the Court below according to him, was wrong in dismissing the Misc. judicial Case for restoration of the probate proceeding on the ground that Rule 9 of Order 9 of the Code has no application to such a proceeding he also submitted that the learned judge while relying upon the decision of this Court reported in 78 Calwn 25 in support of his finding misread and misapplied it inasmuch as the said decision is not an authority for the proposition that Order 9 Rule 9 of he Code is not applicable to a probate proceeding.

( 9 ) ON the other hand, Mr. Roy Chowdhury appearing for the opposite party respondent contended that the remedy of the petitioner lay in filing a fresh application for grant of probate because Order 9 Rule 9 of the Code of Civil Procedure has no application to a probate proceeding, as rightly found by the learned court below.

( 10 ) WE may now examine the rival contentions of the parties on the basis of the relevant legal provisions and the

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