The provisions of Order 9 Rule 13 of the CPC are applicable to probate proceedings, and a party who has been prevented by sufficient cause from appearing when a matter is called on for hearing may apply to set aside the ex parte order under that rule.

Suhas Chandra Sen, J. This appeal arises out of an application made by Rabindra Nath Dutta, the appellant before us, for setting aside an ex parte order passed on 15th October, 1982 granting probate of a will executed by one Judhisthir Dutta. The learned Trial Judge held that the application was not maintainable on the ground that it had been made under Order 9, Rule 13 of the Code of Civil Procedure. The learned Judge did not express any opinion on the question whether there was sufficient cause for non-appearance of the applicant at the time when the matter was called on for hearing. It was held that the only procedure for setting aside the ex parte grant of probate was by way of an application under S. 263 of the Indian Succession Act. Reliance was placed on a judgement delivered by Sudhindra Mohan Guha, J. in the case of Nityananda Pramanick v. Phurubala Pramanick 1982 CLJ 286 for the proposition that the provisions of Order 9 Rule 13 of the Code of Civil Procedure were not applicable for recalling an ex parte order granting probate of a will. The application made under Order 9 Rule 13 was dismissed with costs in that case.

2. Mr. Chakrabarty, appearing on behalf of the appellants, submitted before us that the provisions of S. 263 of the Indian Succession Act, were attracted only when there was an actual grant of probate or letters of administration In this case, there was only an order or direction for granting of a probate. Until and unless probate was actually issued, the jurisdiction of the Court for revoking the probate under S. 263 could not be invoked. Reliance was placed for this proposition on a division bench judgement of the Bombay High Court in the case of Jamsetji Nassarwanji v. Hirjibhai Navroji Anklesaria ILR 37 Bombay 158 and in particular on the following passage at page 171 :

“There was such grant in existence, and if Mr. Tyabji under the terms of S. 234 had a jurisdiction on the grounds stated to hi to revoke the probate which we think is extremely doubtful, he certainly had no jurisdiction to purport to revoke a probate which had never been issued Quite apart from the fact that Letters Administration to the same estate had already been granted by him and that person who, he supposed had obtained probate, was already dead.”

3. It has also been argued that the application made under Order 9 Rule 13 should note have been dismissed in any event. Section 263 deals with revocation or annulment of a probate proceeding does not come within the ambit of S. 263.

4. Mr. P.K. Roy, on behalf of the respondents, has submitted that the ministerial act of actually granting a probate is really of no legal consequence in a case like this. As soon as an order for grant of a probate had been passed by this court, the applicant could have made an application for revocation of that grant under S. 263 of the Indian Succession Act. It was submitted that the observation of Bombay High Court in the case of Jamsetji Nassarwanti v. Hirji Navroji Anklesaria ILR 37 Bombay 158 on which reliance was placed on behalf of the appellants was made per incuriam and, was, in any event, erroneous in law. In support of this contention, Mr. Roy relied on a judgement of the Patna High Court in the case of Ram Parikha Rai & anr v. Sheo Pujan Rai AIR 1968 Patna 209 in which Mr. Justice Untwalia differed from the view pressed by the Bombay High Court and held that the grant of probate or letters of administration could be revoked under S. 263 of the Act, even though the probate or the letters of administration had not been actually issued under the seal of the Court.

5. Mr. Roy further submitted that in view of the specific provisions of the Indian Succession Act for setting aside an ex parte order passed in a probate proceeding there was scope for invoking the general provisions of the Code of Civil Procedure. It was argued that S.263 was a section of very wide amplitude and an order of setting aside of a ex parte decree could only be passed un