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