JUDGMENT

S. PANDA, J. — In this writ petition, the petitioner has challenged the order dated 29.9.2008 passed by the learned District Judge, Cuttack in CMA No. 115 of 2006 allowing an application for condonation of delay and setting aside the ex parte order passed by the said Court in OS No. 1 of 2006 granting Probate of Will in favour of the present petitioner.

2.The facts leading to the present writ petition are as follows:

The petitioner filed a Test Case before the learned District Judge, Cuttack for grant of Probate of Will in his favour by one Gopinath Das son of late Kasinath Das. He died on 25.9.2003. The Will in question was annexed to the said application. It was stated that the same was the last Will of the testator-Gopinath Das who was residing at Bhasakosh Lane, Cuttack. The execution of the Will was made on 6.10.2002 in the presence of witnesses who duly attested the Will. The petitioner is the sole executor named in the Will and the opposite parties are near relations of the testator. General citation had been issued under Section 283 of the Indian Succession Act calling upon the persons to appear and file objection, if any. The said case was registered as Test Case No. 22 of 2004. In pursuance of issuance of general citation, the opposite parties appeared though advocate and filed their written statement denying the claim of the petitioner. The Court below appointed the petitioner as administrator of the estate at the initial stage. However, on the objection being filed by the opposite parties, he was discharged and the opposite parties were appointed as the administrator of the estate vide order dated 7.10.2005 with a direction to maintain and submit accounts each year. After obtaining permission from the Court, the parties disposed of certain properties vide registered sale deed dated 20th January, 2006. However, since the opposite parties did not take any step in the proceeding, they were set ex parte on 25.4.2006 and the said case was converted to an original Suit and renumbered as O.S. No. 1 of 2006. The petitioner as plaintiff examined himself as P.W.2 and one of the attesting witnesses as P.W.1 and filed some documents which were marked Exts. 1 and 2. After hearing the parties, the Court below decreed the suit ex parte on 12.5.2006 granting probate in favour of the plaintiff in respect of the Will executed by Gopinath and vacated the order of appointment of administrator pendente lite of the estate.

3.The power-of-attorney holder of opposite parties filed an application under Order 9 Rule 13 read with Section 151 of the Civil Procedure Code for setting aside the ex parte order dated 12.5.2006 passed in O.S. No. 1 of 2006 with the allegations that the present petitioner was working in the house of late Gopinath as a servant and taking advantage of his closeness and the old age of Gopinath, he fabricated and manufactured a forged Will in his favour. After the death of Gopinath, he filed a case for grant of probate. The opposite parties appeared and filed their written statement contesting the case. However, as the advocate looking after the case on behalf of the opposite parties did not take any step in the case, they were set ex parte. When they came to know about the ex parte order on 21.6.2006 at Nanpur after receiving the notice from the Land Acquisition Officer, they filed an application under Section 5 of the Limitation Act for condonation of delay in filing the application under Order 9 Rule 13 of the Civil Procedure Code which was registered as CMA No. 115 of 2006.

4.The petitioner filed an objection to the said application denying the allegations of the power of attorney holder of the opposite parties and taking a specific stand that the application under Order 9 Rule 13 of the Civil Procedure Code was not maintainable for setting aside the ex parte order under the Indian Succession Act. The opposite parties never came forward with sufficient cause which prevented them to appear while the matter was ca