The purported application is claimed to have been filed under section 301 of the Indian Succession Act by a beneficiary under a will for the removal of an executor appointed under the terms of the will. The question for consideration is one of procedure to be followed on the Original Side of this Court the applicant herein contending that section 301 authorises him to move this Court for the removal of an executor by means of an application as distinct from an original petition. On the other hand, the office takes the view, based upon Order 2, rule 1 and Order 14, rule 1 of the Rules of the High Court, 1956, that when a prayer is made under section 301 of the Indian Succession Act, it should be made in the form of a petition only and not by an application, because it constitutes commencement of fresh proceedings in relation to the subject-matter of the request.

Mr. Anantarama Mudaliar, learned Counsel for the applicant, strongly relies on the use of the word ‘Application ‘in section 301 of the Act and contends that whenever the statute contemplated a petition, it used the word ‘petition ‘and since the word ‘petition ‘is not present in section 301 and only the expression, ‘ap