JUDGMENT Mitter, J. - One Mahiram Thakuria died on the 29th December, 1937. He was survived by his only son Kailash and his dhemna wife, Jamuna Dassi. On the 16th December, 1942, Kailash applied for probate of a Will said to have been executed by Mahiram on the 7th August, 1937. He had applied for probate of the same Will before on the 21st of September, 1938. A son of Jamuna Dassi by her former husband whose name is Hem Chandra Thakuria contested the probate proceedings which had been started in September, 1938. Those probate proceedings after contest were numbered 179 of 1938. On the 20th September, 1939, an application signed by Kailash and Hem Chandra Thakuria and not signed by the other contesting party, Jamuna Dassi, was filed in that probate case. The petition runs thus: That the above probate case is fixed for 20th September, 1939, next. There is likelihood of frequent misunderstanding amongst us if this litigation be allowed to go on and so we have come to an amicable settlement and this probate case is withdrawn by the Petitioner and it will be dismissed. Parties will bear their respective costs. I shall not be eligible to file or prosecute any probate proceeding and if I do so, the same will be invalid. It is therefore prayed that the probate case may be dismissed and the parties may be directed to bear their own costs. (Sd.) Kailash Chandra Chaudhury. Then there followed an endorsement to the effect: I agree to this amicable settlement. (Sd.) Hem Chandra Thakuria. 2. On the 20th September, 1939, Jamuna Dassi did not appear. On the basis of this petition the Presiding Judge passed the following order: The Plaintiff applies for withdrawal of the case. The case is dismissed on withdrawal. The parties to bear their own costs. 3. On the same day Kailash transferred some immovable properties to Hem Chandra Thakuria. In December, 1942, Jamuna Dassi instituted a title suit against Kailash and his transferee, Hem Chandra, for a declaration that she had some interest in the properties which Kailash had transferred to Hem Chandra and for recovery of her share. Shortly after the institution of (sic) suit Kailash again applied for probate of the same Will. In December, 1942, Jamuna Dassi instituted a title suit against Kailash and his transferee, Hem Chandra, for a declaration that she had some interest in the properties which Kailash had transferred to Hem Chandra and for recovery of her share. Shortly after the institution of (sic) suit Kailash again applied for probate of the same Will. Jamuna Dassi entered appearance and objected to the probate on three grounds: (1) that the earlier probate proceedings having been withdrawn without leave the present application was not maintainable; (2) that in view of the compromise made in Probate Case No. 179 of 1938 these proceedings could not go on and (3) that Mahiram had no testamentary capacity at the time when he executed the Will. The learned District Judge has overruled all these three points and has granted probate. Jamuna Dassi has preferred this appeal. 4. The learned Advocate for the Appellant does not challenge before us the findings of the learned District Judge relating to the testamentary capacity of Mahiram. The evidence is also sufficient to establish that Mahiram had testamentary capacity at the time of the execution of the Will and that the propounded Will had been duly executed by him. The two other points which we have noticed above have, however, been pressed before us. 5. We hold that Or. 23, r. 1, C.P.C., is not applicable to probate proceedings. Probate proceedings are not suits. The provisions of the CPC are to be followed in contentious probate proceedings so far as they may be applicable. We therefore hold in agreement with the learned District Judge that Kailash could maintain the second application for probate in spite of the fact that his first application for probate was not proceeded with. 6. Regarding the second point, there is no substance. The petition on which the probate proceedings were withdrawn was signed by Kailash and Hem Chandra. Jamuna Dassi was not a party to that application. In her evidence Jamuna Dassi says that there was no compromise with her at the time when the probate proceedings were withdrawn. In view of her aforesaid evidence she cannot raise the second question. According to her it was a compromise between Kailash on the one part and Htm Chandra (sic) the other. As Hem Chandra is not (sic) grant of probate, probate has (sic) as it is found that the Will is the Will of Mahiram. In view of her aforesaid evidence she cannot raise the second question. According to her it was a compromise between Kailash on the one part and Htm Chandra (sic) the other. As Hem Chandra is not (sic) grant of probate, probate has (sic) as it is found that the Will is the Will of Mahiram. We have already found that the Will is the Will of Mahiram. The appeal is accordingly dismissed with costs--the hearing-fee is assessed at two gold mohurs. Akram, J. I agree.