( 1. ) THIS revision is directed against the order dated 20th July, 2007 by the Second Additional District Judge, Bhopal in Case No. MJC No. 93/2007 by which petitioners application under Order 7, Rule 11, Civil procedure Code was rejected.

( 2. ) THE facts of the case are as under :

(a) Late Sukhram Bhowmik was husband of respondent Smt. Vandana bhowmik. He died on 17-12-2003. The applicant filed an application for grant of probate on the basis of Will dated 22-4-2003 stated to be executed by late sukhram Bhowmik in his favour by which first floor of a dwelling house MIG 48, Sector 3-A, situated at Saket Nagar, Bhopal stated to be bequeathed in favour of the applicant.

(b) The application filed before the Second Additional District Judge was registered as M. J. C. 17/2006 in which summon was issued to the respondent/non-applicant. The summon was returned back with the report that respondent refused to accept the same and on the basis of this, respondent was proceeded an ex parte and final order dated 30-10-2006 Annexure R/3 was passed against the respondent thereby a probate was granted in favour of the petitioner.

( 3. ) THE respondent asked the petitioner to vacate the accommodation which was in possession of the petitioner, as an employee of husband of respondent. The petitioner informed to the respondent that the Court had issued probate in his favour on basis of Will which was executed by Sukh Ram Bhowmik. On getting this knowledge, respondent after seeking legal advice, filed an application under order 9, Rule 13 read with section 151 of the Code of Civil Procedure, 1908 (hereinafter referred as C. P. C.) on 15-3-2007 for setting aside ex parte order dated 30th October, 2006, on the ground that no summon was tendered or served on the respondent on 14-3-2006. It was alleged by respondent that she was at her home along with her sister on that date, but no one came to her to serve the summon. The will alleged by the petitioner is a forged Will and the petitioner obtained probate without information to respondent/non-applicant. On getting information in respect of proceedings, the respondent filed an application before the Court along with an application under section 5 of the Limitation Act to condone the delay occurred in filing the application, supported by documents regarding the treatment of the respondent. Copy of the application is on record as Annexure R/4.

( 4. ) THE application was registered as MJC No-93/2007 and the trial Court issued notice to the petitioner. The petitioner filed reply denying the allegations of the application and has also filed an application under Order 7, Rule 11 of civil Procedure Code alleging that the provisions of Order 9, Rule 13 of Civil procedure Code are not applicable in the proceedings of probate, under provisions of Indian Succession Act, 1925 and the application be dismissed.

( 5. ) THE trial Court considering the facts of the case and relying on judgment of Patna High Court in Mst. Tribeni Kaur and another vs. Shankar Tiwari and others, AIR 1971 Patna 391 and a judgment of Calcutta High Court in Vimla kanta Sengupta vs. Sarojini Koner, AIR 1985 Calcutta 275 found that the provisions of Order 9 of the Civil Procedure Code are applicable in the proceedings of probate under the Indian Succession Act, 1925 and rejected the application under Order 7 Rule 11 of the Civil Procedure Code. This order is under challenge in this petition.

( 6. ) THE learned counsel appearing for the petitioner submitted (a) that the provisions of Order 9, Rule 13, Civil Procedure Code are not applicable in the proceedings of probate and the Court below erred in rejecting the application filed by the petitioner. (b) That when the provision of order 9 Rule 13 is not applicable, the rejection of the application was misconceived. It is submitted that this revision be allowed, the impugned order be set aside, and the application under Order 7, Rule 11, Civil Procedure Code filed by the petitioner be allowed