Judgment 1. It appears that the opposite parties instituted a probate case before the District Judge of Gaya, alleging that one Sukhlal Singh had died on the 14th November, 1953, leaving behind a will appointing the opposite parties as trustees and executors to manage the property dedicated to Radha Krishna Thakurji. The petitioner filed an objection to the effect that the will was forged and the probate case should be dismissed. Thereafter the probate case was converted into Title Suit No. 1 of 1958. The hearing of the case was taken up and the plaintiff adduced evidence and the defendant also adduced evidence and deposited Rs. 200.00 for the examination of an expert to examine the will. During the hearing of the case opposite party filed a petition to transpose opposite party No. 3 to the category of defendant on the ground that he was gained over. On the 30th June, 1960, opposite party No. 5 filed a compromise petition admitting that the will was forged and that the petitioner was the real owner of the properties in dispute. On the nth July, 1960, the case was taken up for hearing and for consideration of the compromise petition. The compromise was recorded on that date and the suit was disposed of by the Additional District Judge Sri. A. N. Mukherjee, in terms of the compromise petition so far as opposite party No. 5 was concerned and as the other opposite parties did not appear on that date the suit was dismissed for non-prosecution so far as they were concerned. The order of the district Judge dated the nth July, 1960, reads as follows : 11-7-60. Defendant files hazri. Plaintiffs Nos. 3 to 5 who have not compromised the suit take no steps. On the last two dates also, it appears they had taken no steps in the case. The capo has been compromised between plaintiffs Nos. 1 and 2 and the only defendant. The case is called out but none responds on behalf of the plaintiffs Nos. 3 to 5. Lawyer for the defendant is present. Joint petition of compromise filed by plaintiff No. 2 and the defendant dated 30-6-60 put up. Plaintiff No. 1s petition dated 12-9-59 for permission to withdraw from this case along with its rejoinder filed by the other plaintiffs put up. Heard defendants lawyer. 3 to 5. Lawyer for the defendant is present. Joint petition of compromise filed by plaintiff No. 2 and the defendant dated 30-6-60 put up. Plaintiff No. 1s petition dated 12-9-59 for permission to withdraw from this case along with its rejoinder filed by the other plaintiffs put up. Heard defendants lawyer. ORDER Let the compromise be recorded and the suit of plaintiff No. 2 be decreed in terms of the compromise. The compromise petition will form part of the decree. The plaintiff No. 1 is permitted to withdraw from the suit and the objection of the other plaintiffs is rejected as not pressed. The suit will stand dismissed for non-prosecution without cost so far as plaintiffs Nos. 3 to 5 are concerned". 2. Two of the opposite parties, Deonandan Missir and Phagu Sao, later on filed an application in the court of the Additional District Judge, Sri K.K. Bose, asking that the order of his predecessor, Sri A.N. Mukherjee, dated the nth July, 1960, should be set aside and the probate case should be restored to its file for being dealt with on merits. This application has been allowed by Sri K.K. Bose on the ground that his predecessor had not written out a judgment under the provisions of Order 17, Rule 3, of the Code of Civil Procedure, and the failure of his predecessor to do so made his order dated the 11th July, 1960, ultra vires and a nullity. 3. The petitioner has now obtained a rule from the High Court, calling upon the opposite parties to show cause why the order of the Additional District Judge, Sri K.K. Bose, dated the 19th June, 1961, should not be set aside in the revisional jurisdiction of the High Court. 4. On behalf of the petitioner it was submitted in the first place that the provisions of Order 9, Rule 9, of the Code of Civil Procedure has no application to a contentious suit for probate of will dismissed for default of the applicant, and, therefore, Sri K.K. Bose had no jurisdiction to set aside the order of his predecessor, Sri A.N. Mukherjee dismissing the probate suit for default on the nth July 1960. In sup- port of his submission learned Counsel referred to the decision of a Division Bench of this High Court in Gorakh Ahir v. Jamuna Ahir ILR 22 Pat 273 : (AIR 1943 Pat 281) and also to the decision of the Calcutta High Court in Ramani Debi V/s. Kumud Bandhu Mukerji, 12 Cal LJ 185 where Mookerjee, J. has reviewed all the authorities in dealing with the question and has observed that it would not be right to apply to proceedings not grant of probate the provisions of Sec.103 of the Code of Civil Procedure, which, by its very terms, are plainly intended to apply to suits for enforcement of causes of action. It was pointed out by the learned Judge in that case that dismissal not default of an application for probate does not amount in law to an adjudication against the petitioner upon the question of the genuine character and legal validity of the will, and dismissal, by itself, does not by reason of Sec.103 of the Code of Civil Procedure debar a second application for probate by an executor or by any other person, such as a legatee claiming an interest under the will. For these reasons we hold that the Addi-tional District Judge of Gaya, Sri K.K. Bose, had no jurisdiction to allow the application under Order 9, Rule 9, of the Code of Civil Procedure, and set aside the order of his predecessor, Sri A.N. Mukherji, dated the 11th, July 1960, dismissing the probate suit. 5. We are further of opinion that on merits also the order of Sri A.N. Mukherjee dismissing the suit for non-prosecution on the nth July 1960 is not defective in law. We think that the provisions of Order 17, Rule 2, of the Code of Civil Procedure, apply to this case, and not the provisions of Order 17, rule 3, which can be applied only where the party to the suit to whom time has been granted fails to produce evidence or cause attendance of his witnesses or to perform any other act necessary to the further progress of the suit. On examining the order sheet of the probate suit it appears that the suit was adjourned on the 19th May, 1960, 3rd June, 1960 and the 29th June 1960, on joint petitions filed by both the parties. On examining the order sheet of the probate suit it appears that the suit was adjourned on the 19th May, 1960, 3rd June, 1960 and the 29th June 1960, on joint petitions filed by both the parties. On the nth July 1960, the defendants filed hazri but plaintiffs Nos. 3 to 5, who did not compromise the suit, took no steps in the case. In these circumstances we think that the provisions of Order 17, rule 3, cannot be applied, and the learned Additional District Judge was not bound to take recourse to the provisions of that rule. The view we have expressed is supported by a decision of a Full Bench of the Madras High Court in P.B. Pichamma V/s. K. Sreeramulu, ILR 41 Mad 286 : (AIR 1918 Mad 143 (2) ) (FBJ in which an adjournment was granted to the defendant to enable him to produce his evidence after the close of the plaintiffs case and the defendant failed to appear at the adjourned hearing and thereafter the court proceeded to pass a decree against him. In this state of facts it was held by the Full Bench that the case came within the purview of Order 17, rule 2, of the Code of Civil Procedure. A similar view was expressed in Alwar Ayyangar V/s. Seshammal, ILR 10 Mad 270 and in Basalingappa Kushappa V/s. Shidramappa Irappa, AIR 1943 Bom 321 (FB). Adopting the view expressed in these authorities we hold that the order of Sri A.N. Mukherjee, dated the nth July, 1960, dismissing the suit ex parte for non-prosecution so far as plaintiffs Nos. 3 to 5 are concerned is an order under the provisions of Order 17, rule 2, of the Code of Civil Procedure, and is not vitiated by any error of law. For these reasons we hold that this revision application must be allowed and the order of Sri K.K. Bose, dated the 19th June 1961, restoring the probate suit and allowing the application of the opposite parties must beset aside. We accordingly allow this application, but there will be no order as to costs.