( 1 ) THE Court: This is an application under Chapter 13a of the Original Side Rules. The plaintiff is the executor, heir, legal representative and a legatee of the last Will and testament of his father, late Sachindra Nath Mitra.

( 2 ) MR. Pratap Chatterjee, learned senior counsel, appears for the plaintiff. He submits that in the capacity of executor the plaintiff has filed the suit, and in the suit the present application has been filed under Chapter 13a. The suit has been filed for eviction of the defendants from the suit properties. The suit properties were properties of the testator. The plaintiff has applied for probate of the Will. Such application is pending. In the circumstances, on the basis of the ratio of the Division Bench decision of this Court in Prabhat Nath Das v. Ramendra Kumar Saha, ILR 61 1081, the present application may be adjourned for some time. At the present moment, in the absence of probate, the plaintiff will not be entitled to recover the decree, if one is passed in the Chapter 13a application, though he can lawfully file it.

( 3 ) MR. Dutt, learned senior counsel, appears for the defendants. He submits that in view of the Division B