Article 163 of the Limitation Act does not apply to applications for restoration of dismissed applications where there was no default of appearance on the part of the applicant.

( 1 ) THIS is a First Appeal From Order under Section 209 of the Indian Succession Act against an order o the learned District Judge of Kanpur refusing to restore an application for the revocation of a Probate dismissed for default of appearance of the appellant. It is necessary to state a few facts because the order of the Court below is very sketchy and does not give the necessary facts.

( 2 ) ONE Manni died issucless in 1934 leaving behind a house and a widow. The appellants father manian was, at the time of his death, the nearest reversioner. Srimati Dulari, the widow of manni, is alleged to have made a will in favour of Lakshmi Narain, the respondent. Srimati dulari died on 4th of February, 1946. Lakshmi Narain applied for a Probate to the will of Dulari on 29th of October, 1946. Lakshmi Narain, in his application for the grant ot Probate, did not mention that Manian was close relation of the deceased, and secondly, no notice of the Probate proceedings was given to manian. It appears that Manian came to know about the giant of Probate to Lakshmi Narain during the course of the proceedings of a suit -- Suit No. 1396 of 1947 of the Munsifs court.

( 3 ) ON 17th of January, 1949, Manian applied for the revocation of the Probate. On 21st of June of that year Manian died and Raja Ram, the appellant, was brought on the record of those proceedings in place of Manian deceased. The Probate case dragged on, for adjournment alter adjournment was made till on 20th of August, 1952, the learned Judge adjourned the case to an unspecified date for the purpose of fixing a date. This, to my mind, was a peculiar procedure adopted. One can understand a case being adjourned to a specified date for the purpose ol fixing a date, but to adjourn a case without specifying a date to which it is being adjourned for the purpose of fixing a date is something which I have been unable to understand : be that as it may, it was actually done in this case by the learned District Judge of Kanpur. Raja Ram apparently had no knowledge as to whether or not a date had been fixed in the case. On 15th of December, 1953, Raja Ram learnt that his application for the revocation of the probate had been dismissed. Soon after Raja Ram inspected the record to find out what exactly had happened and on an inspection of the record Raja Ram came to know that on 5th of August, 1953,. e. , almost a year after the case had been adjourned by the Judge for fixing a date, a date had been fixed in the case. The date that was fixed by the learned Judge was 5th of September, 1953. Raja Ram could have no knowledge of this date, and indeed, it is surprising to note how the respondent had any knowledge of this date. The case was taken up on 5th of September, 1953, and the application of raja Rarn for the revocation of the Probate, which had been granted to Lakshmi Narain, was dismissed for want of prosecution. As I have pointed out earlier, Raja Ram came to know about this order sometime on or after 15th of December, 1953, because on that date, namely, on 15th of December 1953, all that Raja Rarn knew was that his application had been dismissed. On 12th of January, 1954, Raja Ram made an application for setting aside the order of dismissal and for restoring his application for the cancellation of the Probate to its original number and for its decision on the merits. This application for the setting aside of the order of 5th of September, 1953, came up before the learned Judge for decision on 22nd of January, 1954. The learned Judge disposed of the application by the following very short order:

"applicant was represented by two counsel but neither appeared on the date of hearing, viz. , 5-9-53. Hence there is no just cause for restoration. Rejected. "

Two counsel undoubtedly represented the applicant but neither of these two counsel had any notice of the date which had been fixed by the learned Judge for the disposal of the case. The learned Judge never troubled to call the