BAHARUL ISLAM, J.:- The appellant, Nira Kanta Chutia, filed an application for probate in respect of a will left by late Chatradhar Chutia in the Court of the District Judge, U. A. D. at Jorhat. The two respondents filed objections. As the matter became contentious, it was registered as a suit, being Title Suit No. 23 of 1969. Eventually the suit was fixed for hearing on 9-5-72. On that date the appellant filed an application praying for an adjournment on the grounds that one of his witnesses was ill and that his counsel was also unwell. The petition was rejected and the suit was dismissed. On 11-5-1972 the appellant filed an application for restoration of the suit. Notice of the petition for revival was issued to the respondents. They appeared and filed objections contending that there was no sufficient cause for revival of the suit. The learned District Judge, after hearing the parties held: (i) that the appellant had 3 witnesses including Kalicharan, who was absent on 9-5-72. Even in the absence of Kalicharan, the appellant could have examined the other two attesting witnesses to prove the execution of the Will; and (ii), if the appellants advocate, who was in-charge of the case was unwell, the appellant could have engaged another Advocate; and in that view he rejected the application for revival by his impugned order dated 29-1-73.

2. The appellant has filed this appeal under Order 43, Rule 1 (c) read with Section 104 of the Code of Civil Procedure (hereinafter called the Code) against the aforesaid order of the District Judge.

3. This appeal came up for hearing on 3-6-76 before a Division Bench of this Court. Before the Bench the respondents raised a preliminary objection. The objection was that in view of Section 141 of the Code, the procedural part of the Code was made applicable in a probate proceeding. The appeal is under Order 43, Rule 1 (c) and arises out of an order under Order 9, Rule 9 of the Code. Order 9, Rule 9 grants a substantive right to the plaintiff to file an application for revival of a suit dismissed for default of the plaintiff. As such this appeal was incompetent.

4. Similar preliminary objection was taken in the case of Debi Charan Sarma v. Lilamati Debi, reported in ILR 1949 (1) Assam 54, in which a Division Bench of this Court, relying on a decision of the Madras High Court reported in AIR 1919 Mad 112 and two decisions of the Lahore High Court reported in AIR 1936 Lah 712 and AIR 1936 Lah 863, held that an application under O.9, R.9 lies for setting aside an order dismissing a probate proceeding for default of the applicant and as such an appeal under Order 43, Rule 1(c) of the Code did lie. As the point now raised before the Division Bench was not raised in the case of Debi Charan Sarma v. Lilamati Debi (supra), this appeal has been referred to a larger Bench. This is how the matter has come up before us.

5. Mr. K. C. Bezbarua, learned counsel appearing for the respondent, repeats the same preliminary objection and submits that the appellants application under O.9, R. 9 of the Code was incompetent inasmuch as it granted a substantive right, while Section 141 of the Code made only the procedural part of the Code applicable to a probate proceeding. Hence, he submits, this appeal under Order 43, Rule 1 of the Code arising out of an order on an application under Order 9, Rule 9 is incompetent.

6. Section 141 of the Code provides:-

"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".

It is not disputed before us that the District Judge trying a probate proceeding is a Court of civil jurisdiction. Nor is it disputed before us that a probate proceeding is treated as a suit after it becomes contentious. Normally, therefore, Section 141 of the Code would apply in the trial of a probate proceeding before a District Judge.

Section 268 of the Indian Succession Act, 1925 (hereinafter called th