JUDGMENT Chakravarti, J. - This is an appeal by the applicant for probate of a will said to have been executed by Hara Gopal Dutta on the 21st November, 1908. The Petitioner is one of the two executors appointed by the will. The application for probate was opposed by the purchasers from his son of some of the properties left by the testator and the learned District Judge of Sylhet has dismissed the application without going into the merits of the case. It appears that a previous application for probate of this will was made by both the executors, Surjya Kumar, the present applicant and one Jogesh Chandra Dutta in the year 1910 and that application was dismissed for default before the summons was served. Then, in the year 1911, another application for probate of the same will was made by the executor Jogesh Chandra Dutta. The learned District Judge dismissed that application too without going into the merits of the case on the ground that a previous application for the same had already been dismissed in 1910. 2. In the present appeal, the learned vakil for the Petitioner Appellant contends that the order of the learned District Judge dismissing the application without going into the merits of the case is wrong. I think that this contention is well founded. It was pointed out by this Court in the case of Ramani Debi v. Kumud Bandhu Mookerjee (1910) 14 G.W.N. 924. that the provisions of Section 103 of the Code of 1882 were not applicable to proceedings like this. Both the orders passed, one in 1910 and the other in 1911, were passed without, as already stated, going into the merits. Therefore, it cannot be contended that those orders are res judicata as is pointed out in the case referred to above, nor can it be said that the proceedings are barred by the provisions of Order IX, Rule 9 of the present Code of Civil Procedure, which corresponds to Section 103 of the old Code of 1832 under which the case just cited was decided. It seems to me just and proper that, if a will is propounded by the executors appointed by it, the Court must decide as to the genuineness or otherwise of that will, if there is any objection raised as regards its validity. It seems to me just and proper that, if a will is propounded by the executors appointed by it, the Court must decide as to the genuineness or otherwise of that will, if there is any objection raised as regards its validity. The dismissal of an application for probate without trial of that question cannot be said to be a decision binding for all purposes. If an executor is denied the opportunity of putting his case before the Court in circumstances existing as in the present case, the result is that the will of the testator is given a go by and it becomes altogether an in-fructuons document. I think, therefore, that the judgment of the learned District Judge in the present case should be set aside and the case sent back to the primary Court for retrial on the merits. The learned District Judge should decide the other objection raised by the objectors and then dispose of the case according to law, Each party will bear his own costs up to this stage. Costs of the further proceedings will abide the result of the decision on the fresh trial. Walmsley, J. 3. I agree.