Nira Kanta Chutia v. Bedoi Chutiani and another — 1977 DIGILAW 14 (GAU)

Judgement BAHARUL ISLAM, J.:- The appellant, Nira Kanta Chutia, filed an application for probate in respect of a will left by late Chatradhar Chutia in the Court of the District Judge, U. A. D. at Jorhat. The two respondents filed objections. As the matter became contentious, it was registered as a suit, being Title Suit No. 23 of 1969. Eventually the suit was fixed for hearing on 9-5-72. On that date the appellant filed an application praying for an adjournment on the grounds that one of his witnesses was ill and that his counsel was also unwell. The petition was rejected and the suit was dismissed. On 11-5-1972 the appellant filed an application for restoration of the suit. Notice of the petition for revival was issued to the respondents. They appeared and filed objections contending that there was no sufficient cause for revival of the suit. The learned District Judge, after hearing the parties held: (i) that the appellant had 3 witnesses including Kalicharan, who was absent on 9-5-72. Even in the absence of Kalicharan, the appellant could have examined the other two attesting witnesses to prove the execution of the Will; and (ii), if the appellants advocate, who was in-charge of the case was unwell, the appellant could have engaged another Advocate; and in that view he rejected the application for revival by his impugned order dated 29-1-73. 2. The appellant has filed this appeal under Order 43, Rule 1 (c) read with Section 104 of the Code of Civil Procedure (hereinafter called the Code) against the aforesaid order of the District Judge. 3. This appeal came up for hearing on 3-6-76 before a Division Bench of this Court. Before the Bench the respondents raised a preliminary objection. The objection was that in view of Section 141 of the Code, the procedural part of the Code was made applicable in a probate proceeding. The appeal is under Order 43, Rule 1 (c) and arises out of an order under Order 9, Rule 9 of the Code. Order 9, Rule 9 grants a substantive right to the plaintiff to file an application for revival of a suit dismissed for default of the plaintiff. As such this appeal was incompetent. 4. The appeal is under Order 43, Rule 1 (c) and arises out of an order under Order 9, Rule 9 of the Code. Order 9, Rule 9 grants a substantive right to the plaintiff to file an application for revival of a suit dismissed for default of the plaintiff. As such this appeal was incompetent. 4. Similar preliminary objection was taken in the case of Debi Charan Sarma v. Lilamati Debi, reported in ILR 1949 (1) Assam 54, in which a Division Bench of this Court, relying on a decision of the Madras High Court reported in AIR 1919 Mad 112 and two decisions of the Lahore High Court reported in AIR 1936 Lah 712 and AIR 1936 Lah 863, held that an application under O.9, R.9 lies for setting aside an order dismissing a probate proceeding for default of the applicant and as such an appeal under Order 43, Rule 1(c) of the Code did lie. As the point now raised before the Division Bench was not raised in the case of Debi Charan Sarma v. Lilamati Debi (supra), this appeal has been referred to a larger Bench. This is how the matter has come up before us. 5. Mr. K. C. Bezbarua, learned counsel appearing for the respondent, repeats the same preliminary objection and submits that the appellants application under O.9, R. 9 of the Code was incompetent inasmuch as it granted a substantive right, while Section 141 of the Code made only the procedural part of the Code applicable to a probate proceeding. Hence, he submits, this appeal under Order 43, Rule 1 of the Code arising out of an order on an application under Order 9, Rule 9 is incompetent. 6. Section 141 of the Code provides:- "The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction". It is not disputed before us that the District Judge trying a probate proceeding is a Court of civil jurisdiction. Nor is it disputed before us that a probate proceeding is treated as a suit after it becomes contentious. Normally, therefore, Section 141 of the Code would apply in the trial of a probate proceeding before a District Judge. Section 268 of the Indian Succession Act, 1925 (hereinafter called the Act), however, provides: "268. Nor is it disputed before us that a probate proceeding is treated as a suit after it becomes contentious. Normally, therefore, Section 141 of the Code would apply in the trial of a probate proceeding before a District Judge. Section 268 of the Indian Succession Act, 1925 (hereinafter called the Act), however, provides: "268. Proceedings of District Judges Court in relation to probate and administration.- The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908." The Code of Civil Procedure is a general law, while the Indian Succession Act is a special law. When there is a special law, the general law does not apply. In the instant case when there is a special law engrained in Section 268 of the Act for the regulation of the proceedings of the Court of the District Judge in relation to the grant of probate, the general law engrained in Section 141 of the Code would not apply. We need not, therefore, examine the content of Section 141 of the Code. We need in this case examine the content only of Sec.268 of the Act, with the result that it is not necessary to examine whether only the procedural part of the Code has been made applicable to a probate proceeding and whether Order 9, Rule 13 grants a substantive right for an application for revival of a dismissed probate proceeding and whether, consequently, Order 43, Rule 1 (c) also grants substantive right of appeal against such an order. 7. Section 268 of the Act provides that the proceedings of the Court of the District Judge in relation to the grant of probate, inter alia, shall be regulated by the Code so far as the circumstances of a case permit. The provisions of the Code will not apply only when it is otherwise provided by the Act itself. It is seen from the provisions of the Act that when an application for probate is filed by a person, the Act is silent on the procedure to be followed and as such, of necessity, the Code has to be followed in view of Section 268 of the Act. It is seen from the provisions of the Act that when an application for probate is filed by a person, the Act is silent on the procedure to be followed and as such, of necessity, the Code has to be followed in view of Section 268 of the Act. When a probate proceeding is registered and treated as a suit after it becomes contentious and on a date fixed for its hearing the plaintiff is absent, what will the Court do? The Act is silent. Of necessity, therefore, it has to look to the provisions of the Code; and Order 9, Rule 8 is the only provision under which it can dismiss a suit, and, for that matter, reject the probate proceedings. It cannot be said that the Court is powerless and will sit helpless. Mr. Bezbarua submits that the Court does not have the power to dismiss the suit under Order 9, Rule 8 of the Code. But he has not been able to tell us under which provisions of law, in such a situation, the Court can dismiss an application. 8. If a probate proceeding is dismissed under Order 9, Rule 8 of the Code, what is the remedy of the applicant? The Act is again silent. Naturally, therefore, again, the appropriate provision of the Code has to be imported, and the appropriate provision is Order 9, Rule 9. As such in my opinion, an application under Order 9, Rule 9 does lie against an order rejecting a probate proceeding. Mr. Bezbarua has faintly submitted that an order of dismissal of a probate proceeding for default of the applicant amounts to an order refusing to grant probate under Sec.298 of the Act and the remedy is by way of an appeal under Section 299 of the Act. We are unable to accept the contention. Section 299 of the Act envisages an order made by the District Judge by virtue of powers conferred only by the Act. But when an order is passed not in exercise of powers conferred by the Succession Act, but in exercise of powers made available, to him under the provisions of the Code of Civil Procedure no appeal would lie under Section 299. But when an order is passed not in exercise of powers conferred by the Succession Act, but in exercise of powers made available, to him under the provisions of the Code of Civil Procedure no appeal would lie under Section 299. As stated above, the impugned order passed by the District Judge is under Order 9, Rule 9 of the Code and, as such, the remedy is only by an appeal under Order 43, Rule 1 (c). Section 299 of the Act envisages an order made on merit by the District Judge either granting or refusing to grant a probate. 8A. Mr. Bezbarua has submitted that the right of appeal is a substantive right granted by law. Whether a right is substantive or procedural is relative. The entire Civil Procedure Code is a procedural law vis-a-vis the right of a person or the enforcement of a right in court of law. The C. P. C., although a Code of Procedure, also contains certain provisions of substantive nature, such as rights of appeal, review and revision. 9. AIR 1936 Lah 712 and AIR 1936 Lah 863 also took a similar view. AIR 1971 Pat 391 , relying on AIR 1936 Lah 863 also held that the provision of O.9, R.13 applied to a probate proceeding in view of Section 268 of the Act. In my respectful opinion AIR 1971 Pat 391 (supra) correctly decided that Order 9, Rule 13 of the Code applied to probate proceedings; for the same reasons Order 9, Rule 9 will apply to a probate proceeding. (1910) 14 Cal WN 924 was also cited before us. In my opinion this decision has no bearing on the point before us. In that case the point for decision was whether a fresh application for a probate was barred after a probate proceeding had been dismissed. The answer was given in the negative. In the instant case it has not fallen for our decision whether a fresh proceeding would be barred under Order 9, Rule 9 as was contended in (1910) 14 Cal WN 924 (supra). It was held not to be barred for the reasons that the judgment in a proceeding was a judgment in rem, there was no limitation for an application for probate, and that an application under Order 9 in a probate case is not on "same cause of action". It was held not to be barred for the reasons that the judgment in a proceeding was a judgment in rem, there was no limitation for an application for probate, and that an application under Order 9 in a probate case is not on "same cause of action". It is immaterial for us in this case whether a fresh proceeding for probate is barred or not under the Code. Order 9, Rule 9 is substantive vis-a-vis the Code itself. So an application under Order 9, Rule 9 and an appeal under Order 43 are substantive rights vis-a-vis the Code, but are procedural so far as the right for the grant of a probate created by the Act is concerned. Relying on, and quoting with approval, the decision of the Madras High Court in AIR 1919 Mad 112, this Court in ILR 1949 (1) Assam 54 (supra), held: "The question is whether O.9, R.9, C.P.C., is applicable to the dismissal of an application for probate which has under S.83, Probate and Administration Act, V of 1881, been treated as a suit. That section directs that the proceedings shall take, as nearly as may be, the form of a suit according to the provisions of C.P.C. Section 55 of the same Act also applies these provisions to proceedings in relation to the grant of probate so far as the circumstances of the case admit. And we cannot find anything in the latter part of O.9, R. 9, which is the relevant provision in the present connexion, which cannot he conveniently applied. . . . . . . . . . . . . . . . We can see no reason for treating the applicability of the latter portion of O.9, R.9 as conditional on that of the former or refusing effect to Section 55, Probate and Administration Act, on account of it." AIR 1926 Cal 1057 cited before its also has no bearing on the present case, inasmuch as in that case the point that fell for consideration was whether a probate proceeding was barred after an earlier one had been dismissed for default. AIR 1945 Mad 107 and AIR 1925 Mad 861 were also cited before us. AIR 1945 Mad 107 and AIR 1925 Mad 861 were also cited before us. These decisions also have no bearing to the facts of the present case, as in these cases it was held that Order 9, Rule 9 did not apply to the provisions of the Madras Village Courts Act. AIR 1963 Mad 338 also has no application as the point before the Court was whether Order 9, Rule 13 did apply to a proceeding under Section 146 of the Code of Criminal Procedure. The answer was given in the negative inasmuch as it was held that Section 141 of the Code was not applicable. AIR 1943 Patna 281 was held not to be applicable to a probate proceeding as it was held to apply to suits for enforcement of a cause of action and that a dismissal was no adjudication. AIR 1965 All 211 has merely interpreted Section 299 of the Act and is of no assistance to us. In my opinion ILR 1949 (1) Assam 54 has laid down the correct proposition of law and the decisions of the High Court cited before us, have not taken a contrary view. In the result I hold that the application filed by the appellant under Order 9, Rule 9 of the Code is competent and as such this appeal under Order 43, Rule 1 (c) of the Code is also competent. The preliminary objection is overruled. 10. Mr. D. N. Choudhury, learned counsel appearing for the appellant has alternatively submitted that in any case if it be held that the application under Order 9, Rule 9 was not applicable to a probate proceeding, an application under Sec.151 of the Code would lie for setting aside an order of dismissal for default. As we have overruled the preliminary objection of the learned counsel for the respondent, we need not consider the alternative submission of the appellant. 11. In merit, in my opinion, the order of the learned District Judge is unsustainable, in any case, on his second finding namely, that even if the appellants Advocate was unable to appear on account of his illness, the appellant could have engaged another lawyer. 11. In merit, in my opinion, the order of the learned District Judge is unsustainable, in any case, on his second finding namely, that even if the appellants Advocate was unable to appear on account of his illness, the appellant could have engaged another lawyer. If a lawyer suddenly falls ill on the date of hearing of a case, the party engaging him, may not be in a position to engage a second Advocate, for, he may not have means to engage another counsel; and secondly, on the date of hearing, a second counsel may not readily accept the brief, inasmuch as he may not be able to proceed with the case not having been properly briefed and not being well-prepared. 12. In the result we set aside the order of the learned District Judge and remand the case to him to dispose of the suit on merit. The appeal is allowed. 13. The parties will bear their own costs. 14. SADANANDASWAMY, J. :- When this appeal was heard by the Division Bench it was urged on behalf of the respondent that u/S.141 of the Civil Procedure Code only the procedural part of the Code would apply to a probate proceeding and that an application under Rule 9 or 13 of Order 9 would not lie. It was also contended that an order dismissing an application for probate even for default is appealable under Section 299 of the Indian Succession Act. The Division Bench decision of this Court reported in ILR (1949) 1 Assam 54 (Debi Charan Sarma v. Lilamati Devi) holding that an application under Rule 9 of Order 9, Civil Procedure Code lies for setting aside an order dismissing an application for probate for default and that an order rejecting such an application is appealable under Order 43, Rule 1 was noticed but the Division Bench was of the opinion that the contentions raised before it had not been considered in the above decision and that the appeal should, therefore, be referred to a larger bench. That is how the matter has come up before this Bench. 15. The facts leading to this appeal are as follows:- The petitioner applied for grant of probate of the Will of one Chatradhar Chutia in the Court of the District Judge, Upper Assam Districts at Jorhat on 8th June, 1963. It was registered as Probate Misc. Case No. 32 of 1968. 15. The facts leading to this appeal are as follows:- The petitioner applied for grant of probate of the Will of one Chatradhar Chutia in the Court of the District Judge, Upper Assam Districts at Jorhat on 8th June, 1963. It was registered as Probate Misc. Case No. 32 of 1968. It was contested by the respondents and thereafter it was registered as (Probate) Title Suit No. 23 of 1969. When the suit came up for hearing on 9-5-72 the petitioner filed an application praying for an adjournment on the ground that one of his witnesses was ill and also that his Advocate was ill. This application was rejected and the suit was dismissed. The petitioner filed an application on 11-5-1972 praying for restoration of the suit. The application was opposed and it was dismissed on 29th January, 1973. The petitioner has come up in appeal to this Court against the said order. 16. In ILR (1949) 1 Assam 54 (Debi Charan Sarma v. Lilamati Devi) an application for probate had been dismissed for default. An application had been filed for restoration of the same. That application was rejected and an appeal was presented to this Court under Order 43, Rule 1(c), Civil Procedure Code. It was contended on behalf of the respondents that Order 9, Rule 9 has no application to a petition for probate which had been dismissed for default and that no appeal lies under the provisions of Order 43, Rule 1 (c). It was further contended that the dismissal of the application for probate does not deprive the petitioner of his right to institute a fresh petition and that the applicability of Order 9, Rule 9, Civil Procedure Code is conditional upon the preclusion of a fresh petition for probate. In support of that contention reliance was placed upon the decisions in (1910) 14 Cal WN 924, (1941) 45 Cal WN 739 and ILR 53 Cal 578 : (AIR 1926 Cal 1057) but these cases were distinguished on the ground that they are authority only for the proposition that "the dismissal of an application for probate without trial of that question is not a decision binding for all purpose." It was also observed that in those cases the question whether the applicability of Order 9, R. 9 is conditional upon the preclusion of a fresh petition for probate was not decided. The decisions in AIR 1919 Mad 112, AIR 1936 Lah 712 and AIR 1936 Lah 863 holding that Order 9, Rule 9, Civil Procedure Code is applicable to a proceeding arising out of an application for grant of probate, which had been treated as a suit, were followed. 17. In (1910) 14 Cal WN 924 (Ramani Debi v. Kumud Bandhu Mookerjee) an application for probate of a Will was contested and was registered as a suit. It was dismissed for default. Thereafter the petitioner filed another application for probate of the same Will. The question which arose for decision was whether the second application was barred. It was held that it was not barred by res judicata. It was next considered whether Section 103 of the Civil Procedure Code, 1882 operated as a bar. It was held that if there has been an adjudication on the merits as to the validity of the Will, it is a final settlement of the matter and it cannot be attacked in the same or any other Court by any of the parties thereto or by any person in priority with them and that a refusal to admit a Will to probate is conclusive of the facts necessary to support the decision. Thereafter it was observed as follows:- "It is manifest, therefore, that if the application by an executor for probate of a Will has been dismissed for default, that fact by itself cannot debar an application for probate by any other person, for example, a legatee who claims an interest under the Will, if so, it would be futile to hold that an executor who has made default, cannot propound the Will again." With respect to the learned Judges we are unable to agree with this reasoning. When an executor is precluded from filing a fresh application under those circumstances there is no reason why Order 9, Rule 9, Civil Procedure Code should not be made applicable. 18. In AIR 1936 Lah 712 (Manohar Lal v. Rup Lal) it was held that Order 9, Rule 9 applies to probate proceedings. The same view was taken in AIR 1936 Lah 863 (Run Lal v. Manohar Lal) which has been followed in AIR 1971 Pat 391 (Tribeni Kuer v. Shankar Tiwari). 19. The learned Counsel for the respondents relied on a number of decisions which take the contrary view. The same view was taken in AIR 1936 Lah 863 (Run Lal v. Manohar Lal) which has been followed in AIR 1971 Pat 391 (Tribeni Kuer v. Shankar Tiwari). 19. The learned Counsel for the respondents relied on a number of decisions which take the contrary view. In AIR 1928 All 51 (Bohra Kanhaiya Lal v. Gendo) it has been held that a contested application for probate is not a suit within the meaning of Rule 2 of Chapter 16 of the Allahabad High Court Rules. It is not a case under Order 9, Rule 9, Civil Procedure Code. In AIR 1963 Mad 338 (Periyakarupa Thevar v. Vellai Thevar) it has been held that the provisions of Order 9, Rule 13, Civil Procedure Code cannot be applied to proceedings arising out of the reference under Section 146 Criminal Procedure Code before a Civil Court since Order 9, Rule 13 applies only to suits. Section 141, Civil Procedure Code is also held to be inapplicable since the proceeding in a Civil Court under Section 146, Criminal Procedure Code is not a proceeding "original" in character. It is not a case of a proceeding arising out of an application for the grant of a probate. In AIR 1965 SC 1798 (Nawab Usmanali Khan v. Sagar Mal) the question was whether the proceedings instituted against a Ruler of a former Indian State under Sec.14 of the Indian Arbitration Act, 1940 were incompetent in the absence of the consent of the Central Government under Section 86 (1) read with Section 87B, Civil Procedure Code. It was held that the said proceeding does not commence with a plaint or a petition in the nature of a plaint and cannot be regarded as a suit and that the parties to whom the notice of the filing of the award is given under Section 14 (2) of the Indian Arbitration Act cannot be regarded as "sued in any Court otherwise competent to try the suit" within the meaning of Section 86 (1) read with Section 87B, Code of Civil Procedure. It was, therefore, held that the institution of a probate proceeding against the Ruler of a former Indian State is not barred by Section 86 (1) read with Section 87B. It was, therefore, held that the institution of a probate proceeding against the Ruler of a former Indian State is not barred by Section 86 (1) read with Section 87B. It was further held that Sec.141 does not attract the provisions of Sec.86 (1) read with Section 87B to the proceeding under Section 14 of the Indian Arbitration Act since those sections confer upon the Rulers of the former Indian States the substantive right of immunity from suits and Section 141 makes applicable only those provisions of the Code which deal with procedure and not with those relating to substantive rights. It was also held that Sec.41 (a) of the Indian Arbitration Act also does not carry the matter any further, that Section 86 (1) applies to suits only and Section 141 of the Civil Procedure Code does not attract the provisions of Section 86 (1) to proceedings other than suits. It was also held that by the conjoint application of Section 41 (a) of the Indian Arbitration Act, Section 87 (1) and Section 141 of the Civil Procedure Code, the provisions of S.86 (1) are not attracted to proceedings under Section 14 of the Indian Arbitration Act, 1940. It was, therefore, held that no consent of the Central Government to the institution of the proceeding was necessary. According to this decision Section 86 (1) of the Civil Procedure Code confers substantive rights of immunity from suits on Rulers of former Indian States, that provision relates only to suits and was not rendered applicable to proceedings other than suits by virtue of Section 41 (a) of the Indian Arbitration Act or Sec.141 of the Civil Procedure Code. In AIR 1956 Bom 45 (Indrajitsinghji Vijaysinghji v. Rajendrasinghji Vijaysinghji) the question was whether the suit was not maintainable in the absence of the consent of the Central Government under Section 87-B of the Code of Civil Procedure. A petition for letters of administration was filed and on contest it was converted into a suit. It was held that Section 141 of the Civil Procedure Code cannot make applicable the provisions of Section 86 of the Civil Procedure Code since it conferred a substantive right upon Rulers of Foreign States. A petition for letters of administration was filed and on contest it was converted into a suit. It was held that Section 141 of the Civil Procedure Code cannot make applicable the provisions of Section 86 of the Civil Procedure Code since it conferred a substantive right upon Rulers of Foreign States. It was also held that for the same reason Section 268 of the Indian Succession Act only makes applicable the procedural provisions of the Civil Procedure Code to the proceedings instituted in a Civil Court under the Succession Act in relation to the granting of probate and letters of administration and does not, therefore, make applicable the provisions of Section 86. 20. The contention on behalf of the respondents is that the order of the learned District Judge dismissing the suit for default is appealable under Section 299 of the Indian Succession Act and that the provisions of Order 9, Rule 9 of the Civil Procedure Code do not apply to such an order. Under Section 299 an order made by a District Judge "by virtue of the powers hereby conferred upon him" is appealable to the High Court in accordance with the provisions of the Civil Procedure Code applicable to appeals. Under Section 266 the District Judge shall have like powers and authority in relation to the granting of probate and letters of administration and all matters connected therewith as are by law vested in him in relation to any civil suit or proceeding pending in his Court. Under Section 268 the proceedings in relation to the granting of probate and letters of administration shall be regulated so far as the circumstances of the case permit, by the Code of Civil Procedure. Section 295 of the Indian Succession Act provides that where there is contention, the proceeding shall take "as nearly as may be, the form of a regular suit," according to the provisions of the Code of Civil Procedure and that the petitioner shall be "the plaintiff" and the person who opposes the grant shall be the defendant." 21. It is to be noticed that there is no provision in the Indian Succession Act which empowers the Court to dismiss an application for probate for default. It is to be noticed that there is no provision in the Indian Succession Act which empowers the Court to dismiss an application for probate for default. The intention of the Legislature, therefore, must be assumed to be that such power is to be conferred by the application of the provisions of Order 9 of the Code of Civil Procedure. Hence the provisions of Rule 9 of Order 9 would be applicable where the application for probate which has been converted into a suit has been dismissed for default. Under Section 295 it is provided that the proceeding when contested shall take the form of a regular suit. It is further provided that the petitioner shall be the plaintiff and the opponent the defendant. The provisions of Order 9 apply to suits and speak of the plaintiff and the defendant. Therefore the provisions of Order 9 apply also to a probate proceeding which has been converted into a suit. 22. Most of the decisions which take the contrary view follow the decision in (1910) 14 Cal WN 924 (Ramani Debi v. Kumud Bandhu Mookerjee). The decision in AIR 1956 Bom 45 (Indrajitsinghji Vijaysinghji v. Rajendrasinghji Vajaysinghji) is not one relating to the applicability of Order 9, Rule 9 to a probate proceeding, so also the decision in AIR 1965 SC 1798 (Nawab Usmanali Khan v. Sagar Mal). We are, therefore, of the opinion that the decision in ILR (1949) 1 Assam 54 (Debi Charan Sarma v. Lilamati Devi) is correct. 23. We have now to see whether the order of the learned District Judge refusing to set aside the dismissal for default is sustainable. In the application of 9-5-72 and in the petition filed on 11-5-72 for revival of the suit it was stated that one witness Kali Charan Barua could not come to the Court due to his illness. Another ground was stated to be the illness of the Advocate for the petitioner. The learned District Judge has observed in the course of his order under appeal that the petitioner could have engaged any other counsel to conduct the case if his Advocate was not in a position to come to Court on that day since, in his opinion, the case was simple in nature. The learned District Judge has observed in the course of his order under appeal that the petitioner could have engaged any other counsel to conduct the case if his Advocate was not in a position to come to Court on that day since, in his opinion, the case was simple in nature. He has also observed that there were three attesting witnesses including the said Kalicharan and the petitioner could have examined the other two witnesses relating to the execution of the Will. 24. The learned District Judge has not disbelieved the allegation of the petitioner that his Advocate was ill on that day. The petitioner is a resident of Tirual Gaon in Athgaon Mouza, Golaghat Sub-Division of Sibsagar District. The Court of the District Judge is at Jorhat. If the petitioner came to Jorhat from his village for the purpose of the suit on the date of hearing and learnt that his Advocate was ill on that day, his request for adjournment would be reasonable. In the affidavit accompanying the application the petitioner stated that he had taken summons to the witnesses promptly and three of the witnesses were present on 9-5-72. He also stated therein that he was unable to conduct the suit in view of the fact that the documents and papers in respect of the suit were in the hands of the Advocate, who was ill and therefore remained absent on that day. In the written objection filed on behalf of the respondents it was stated that the allegation of the petitioner to the effect "that his Advocate and the witnesses were ailing" was not admitted but there was no allegation which would lead to the conclusion that this petitioners statement that his Advocate was ill on that day could not be believed. In fact, the learned District Judge has not come to the conclusion that this allegation of the petitioner is not true, on the other hand, he proceeds on the assumption that the petitioners Advocate could not attend the Court on that day since he was ill. When the petitioner alleged that his Advocate was ill, that the documents and papers connected with the suit were in the hands of his Advocate and that the petitioner was, therefore, unable to conduct the suit on that day, the prayer for adjournment cannot be said to be unreasonable. When the petitioner alleged that his Advocate was ill, that the documents and papers connected with the suit were in the hands of his Advocate and that the petitioner was, therefore, unable to conduct the suit on that day, the prayer for adjournment cannot be said to be unreasonable. The learned District Judge has not noticed the statement in the petitioners Affidavit to the effect that the documents and papers connected with the suit were in the hands of his Advocate and that therefore the petitioner was not in a position to go on with the conduct of the suit on that day. The view taken by the learned District Judge that the petitioner could have engaged another Advocate to conduct the suit on that day itself under the above circumstances does not appear to be reasonable. 25. The appeal is allowed. The order of the Lower Court is set aside and the Lower Court is directed to restore the suit to its file and proceed to dispose of the same according to law. The Court-fee paid on the Memorandum of Appeal shall be refunded to the appellant. Parties will bear their own costs in this appeal. 26N. IBOTOMBI SINGH, J. :- . I have had the advantage of reading the proposed judgments of my learned colleagues, and I agree with their conclusions; but I wish to add a few observations of my own. 27. The facts leading to this appeal have succinctly been stated in the proposed judgment of my learned brother, Sadanandaswami, J. and I need not repeat the same. Only a few facts bearing on the question are stated here. The Probate proceeding in the Court of the District Judge, U. A. D., Jorhat became contentious, taking thereby the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, when it was dismissed on 9-5-72 for default of appearance of the plaintiff, who is the appellant before us. 28. Mr. The Probate proceeding in the Court of the District Judge, U. A. D., Jorhat became contentious, taking thereby the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, when it was dismissed on 9-5-72 for default of appearance of the plaintiff, who is the appellant before us. 28. Mr. K. C. Bezbarua, learned counsel for the respondent, submitted that the present appeal, which arose out of the order, dated 29-1-73, rejecting application for setting aside the order of dismissal of the proceeding on 9-5-72, was incompetent, contending that only the provisions of the Code, which deal with procedure, and not those which deal with substantive rights, were applicable to the probate proceeding; and that being so, provision of O. 9, R. 9 of the Code was not attracted, and no appeal lay under O.43, R. 1 of the Code. In support of his contention, he cited the following cases as authority, namely, Nawab Usmanali Khan v. Sagar Mal, AIR 1965 SC 1798 ; Gorakh Ahir v. Jamuna Ahir, AIR 1943 Pat 281; Surjya Kumar Deb Choudhury v. Jayanarayan Deb, AIR 1926 Cal 1057; Ponnambala Chettiar v. Sriramula Chettiar, AIR 1945 Mad 106 ; and Periyakarupa Thevar v. Vellai Thevar, AIR 1963 Mad 338 . On the other hand, Mr. D. N. Choudhury, learned Counsel for the appellant, repudiating the correctness of the proposition of law above, submitted that the provisions of O.9, R.9 and those of O.43, R. 1, Civil Procedure Code are applicable to the case; and as such a right of appeal has been given under the Code, which regulates the procedure in a contentious probate proceeding. He urged that the decision of the Division Bench of this Court in Debi Charan v. Lilamati Debi, ILR (1949) 1 Assam 54, laid down the correct proposition of law on this question, and relied also on the following cases, namely Mst. Tribeni Kuer v. Shankar Tewari, AIR 1971 Pat 391 ; Sakuntala Dasi v. Kusum Kumari Sarkar, AIR 1971 Orissa 103; Smt. Rajeshwari Misra v. Markandeswar Mahadeo Trust, AIR 1965 All 211 ; Ruplal v. Manohar Lal, AIR 1936 Lah 863. 29. Tribeni Kuer v. Shankar Tewari, AIR 1971 Pat 391 ; Sakuntala Dasi v. Kusum Kumari Sarkar, AIR 1971 Orissa 103; Smt. Rajeshwari Misra v. Markandeswar Mahadeo Trust, AIR 1965 All 211 ; Ruplal v. Manohar Lal, AIR 1936 Lah 863. 29. Chapter IV, Part IX of the Indian Succession Act, 1925 (hereinafter referred to as the Act), makes provisions for granting and revoking of probates and letters of administration, Sec.268 of the Act and Section 141 of the Code of Civil Procedure 1908, speak of the procedure, which regulates probate proceedings before a District Judge, and are reproduced here. Sec.268: Proceeding of District Judges Court in relation to probate administration:- The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. Sec.141, C. P. C.: The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of Civil Juristion. 30. The import of these two provisions of law is that proceedings before the Court of District Judge in relation to the probate and letters of administration are to be regulated, as far as the circumstances of the case permit, by the Code of Civil Procedure, 1908 and that the contested proceeding is to take as nearly as may be the form of a suit. A reading of the provisions contained in Chapter IV, Part IX of the Act, will lead one to the conclusion that the District judge is invested with powers to pass various kinds of orders under the Act and also under the Code. Section 299 of the Act confers a right of appeal, against orders falling under the first category, to the High Court, in accordance with the provisions of the Code of Civil Procedure, 1908 applicable to appeals. It is not every order passed by the District Judge, which is appealable under the Act; and unless the order is shown to have been made by him by virtue of the powers conferred upon him under the Act, no appeal lies under the Act. 31. It is not every order passed by the District Judge, which is appealable under the Act; and unless the order is shown to have been made by him by virtue of the powers conferred upon him under the Act, no appeal lies under the Act. 31. In Smt. Rajeswari, AIR 1965 All 211 (supra) it was held that the words "hereby conferred" appearing in Sec. 299 of the Act, meant "conferred by the provisions of this Act" in regard to the appealability of orders. I am in respectful agreement with the view above. 32. In Nawab Usmalali Khan, AIR 1965 SC 1798 (supra), which was strongly relied on by the learned Counsel for the respondent, their Lordships of the Supreme Court, while dealing with the question as to whether Sec.86 (1) read with Section 87B of the Code, would be attracted by Section 141 of the Code, to a proceeding under Sec.14 read with Sec.17 of the Indian Arbitration Act, 1940, held that by the conjoint application of Sec.41 (a) of the Arbitration Act and Sec.86 (1) and Section 141 of the Code of the Civil Procedure, 1908, the provisions of Sec.96 (1) of the Code were not attracted to the proceeding under the Section 14 of the Indian Arbitration Act, 1940. In that context, their Lordships held that Sec.141 of the Code of Civil Procedure makes applicable to other proceedings only those provisions of the Code, which deal with procedure, and not those which deal with substantive rights. On the premises, Mr. Bezbaruah, urged that the appeal before us was incompetent under O.43, R. 1 of the Code. 33. In my opinion, the contention of the learned counsel, though attractive, has no force. Section 104 of the Code envisages three categories of orders appealable under the Code, namely (a) orders enumerated in clauses in Section 104 of the Code, (b) orders made appealable by the Code, that is, those which are enumerated in O. 43, R. 1 of the Code and (c) orders which are made appealable under special law. Orders made by a District Judge in the probate proceeding by virtue of the powers conferred on him under the Act come under the third category, and are appealable under Section 299 of the Act. 34. Orders made by a District Judge in the probate proceeding by virtue of the powers conferred on him under the Act come under the third category, and are appealable under Section 299 of the Act. 34. Now, the question as to whether the impugned order dated 29-1-73, was made under O.9, R. 9 of the Code or not, is to be answered, in my opinion, in the affirmative. It cannot be said, when tested in the light of the provisions of the Act, that the order was made by the District Judge by virtue of the powers conferred upon him under the Act, as the Act did not empower him to make it. Under Sec.266 of the Act, the District Judge in a probate proceeding is invested with all the powers and authorities, as are vested in him in relation to any Civil suit or proceeding in his Court. In the course of procedure in the probate proceeding, which is a civil proceeding, within the meaning of Sec. 141 of the Code, he could pass the impugned order in exercise of the power expressly granted under the Code. The propriety of such an order was, however, entirely a difficult question ; and such an order was to be tested on the facts and circumstances of each case. Indeed, it was also in exercise of the power under O. 9, R. 8 of the Code, that he could dismiss the proceeding by his order dated 9-5-72, there being no provision under the Act to pass such an order. Both the provisions of O.9, R.8 and O.9, R. 9 of the Code do not pertain to the domain of substantive law under the Code. As the impugned order was made under O. 9, R. 9 of the Code, the right of appeal conferred by the Code under O. 43, R. 1 would be available. I am fortified in this view with authorities, which I shall presently discuss: 35. In R. M. A. R. A. Adaikappa Chettiar v. R. Chandrasekhara Thevar, AIR 1948 PC 12, the respondent who was the judgment-debtor claimed the benefits under Secs. 8 and 19 of the Madras Agriculturists Relief Act, 1938, by making an application to the Court of Subordinate Judge of Ramnad at Madura. In R. M. A. R. A. Adaikappa Chettiar v. R. Chandrasekhara Thevar, AIR 1948 PC 12, the respondent who was the judgment-debtor claimed the benefits under Secs. 8 and 19 of the Madras Agriculturists Relief Act, 1938, by making an application to the Court of Subordinate Judge of Ramnad at Madura. The learned Subordinate Judge, who heard the parties, after remand by the High Court of Madras, delivered his judgment on 9-2-39, holding that the judgment-debtor was not an agriculturist within the meaning of the Act, and was not entitled to any scaling down of the debt under the Act. One of the questions, which came up for consideration before their Lordships, was whether the order passed by the Subordinate Judge on 9-2-39, was appealable under the Code. Their Lordships were of opinion that the order was a decree within the meaning of Section 2 (2) of C.P.C., and appeal lay under Sec. 96 of the Code. It was observed at page 14: "The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal." 36. The same view was taken by their Lordships of the Privy Council in Maung Ba Thaw v. Ma Pin, AIR 1934 PC 81. 37. In Ramchandra Agarwall v. State of U. P., AIR 1966 SC 1888 , the question which fell for decision by their Lordships of the Supreme Court was whether the District Judge had jurisdiction under Section 24 of the Code of Civil Procedure, 1908, to transfer a reference made by a Magistrate to a particular Civil Court under Section 146 of the Cr. P.C. to another Civil Court. It was urged that the proceeding before the Civil Court was not a civil proceeding; and since the proceeding before the Criminal Court under Section 145, Cr. P.C. to another Civil Court. It was urged that the proceeding before the Civil Court was not a civil proceeding; and since the proceeding before the Criminal Court under Section 145, Cr. P. C. was a criminal proceeding, any matter arising out of it, including a reference to a Civil Court, did not lose its initial character of a criminal proceeding; and for that purpose Sec. 146 (1-D) of the Code of Criminal Procedure, which bars an appeal, review or revision from any finding of the Civil Court, was pressed into service. Repelling the arguments, their Lordships, held that the proceeding before the Civil Court was a civil proceeding, and that when a special or local law provides for adjudication to be made by a constituted Court, - that is by a court not created by a special or local law but by an existing Court, - it in fact enlarged the ordinary jurisdiction of such a Court. It also established the principle of law that rights under the rules of procedure which govern the proceeding would be available to the parties, unless such rights were expressly taken away by the Special Act Their Lordships approved of the decisions of Privy Council reported in AIR 1934 PC 81 and AIR 1948 PC 12 and observed at page 1890: "Mr. Iyengar tried to put the matter in a somewhat different way. In the first place, according to him, if we hold that the proceeding before the Civil Court is a civil proceeding then all the rules of procedure contained in the Civil Procedure Code, including those relating to appeals or revision would apply to the proceeding. This he points out, would be contrary to the provisions of Sec. 146 (1-D) of the Code of Criminal Procedure which bar an appeal, review or revision from any finding of the Civil Court. From this he wants us to infer that the proceeding does not take the character of a civil proceeding even though it takes place before a civil Court. We are not impressed by this argument. If sub-s. (1-D) had not been enacted (and this is really a new provision) an appeal or revision application would have been maintainable. Now that it its there, the only effect of it is that neither an appeal nor a revision its any longer maintainable. We are not impressed by this argument. If sub-s. (1-D) had not been enacted (and this is really a new provision) an appeal or revision application would have been maintainable. Now that it its there, the only effect of it is that neither an appeal nor a revision its any longer maintainable. This consequence ensues because of the express provision and not because the proceeding before the civil Court is not a civil proceeding". 38. In Collector, Varanasi v. Gauri Shankar Misra, AIR 1968 SC 384 , the question which arose for consideration was whether the High Court while hearing the appeal against the order of the arbitration under Section 19 (1)(f) of the Defence of India Act, 1939 functioned as a Court or as a persona designata. In considering that question, their Lordships also considered a similar question of law above, and it was held at page 386: "The rule its well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was stated by Viscount Haldane L. C. in National Telephone Co. Ltd. v. Postmaster-General, 1913 AC 546 thus; "When a question is stated to be referred to an established Court, without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach and also that any general right of appeal from its decision likewise attaches. This statement of the law was accepted as correct by this Court in National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd., 1953 SCR 1028 : ( AIR 1953 SC 357 )." 39. In Ngwe Hmon v. Ma Po, (1913) 20 IC 281 (Low Bur) a similar question arose. It is a case which arose out of the contentious proceeding for granting Letters of Administration under the Probate and Administration Act (V of 1881), (predecessor Act of the present Act). An order was made restoring the proceeding which was dismissed for default of appearance of the plaintiff on the adjourned date of hearing. It is a case which arose out of the contentious proceeding for granting Letters of Administration under the Probate and Administration Act (V of 1881), (predecessor Act of the present Act). An order was made restoring the proceeding which was dismissed for default of appearance of the plaintiff on the adjourned date of hearing. An appeal was taken against the order of restoration to the Chief Court of Lower Burma under O. 43, R. 1 of the Code, but the appeal was dismissed as incompetent, in the view that the order appealed against was made in the course of procedure under O. 9, R. 9 of the Code, and the procedure in contentious cases was, under Sec. 83 of that Act (similar to Sec. 268 of the present Act) governed by the Code of Civil Procedure and that Code gave no appeal from an order allowing an application to set aside order of dismissal for default of appearance. 40. These decisions in the cases discussed above, support my view, namely, that an order under O. 9, R. 9 of the Code can be passed in a probate proceeding; and remedy by appeal under O. 43, R. 1 of the Code can be availed of. 41. The cases relied on by the learned counsel for the respondent do not help him. In Nawab Usman Ali Khan AIR 1965 SC 1798 (supra), the applicability of Sec. 86 (1) of the Code, which relates to the right of immunity of the Rulers, and which bars the jurisdiction of Civil Court in suits in case of non-compliance, a provision of purely substantive right, to other civil proceeding, was in issue; and no such problem before us was involved in the case. In the case in hand, the nature of the order made in the course of the procedure in the probate proceeding and its appealability, are in question. As contrasted with S. 86 (1) of the Code, the provisions of O.9, R. 8 and O. 9, R. 9 of the Code fall within the domain of adjective law under the Code. The decisions in AIR 1963 Mad 338 and AIR 1945 Mad 106 are also not authorities for the proposition of law in question; and my learned brother, Islam J., in his judgment has given reasons, with which I also agree. The decisions in AIR 1963 Mad 338 and AIR 1945 Mad 106 are also not authorities for the proposition of law in question; and my learned brother, Islam J., in his judgment has given reasons, with which I also agree. It is an established principle of law that the case is an authority for what it decides and not from what can be deduced from it. 42. Another limb of argument of the learned counsel for the respondent may be considered. It was urged that dismissal of the application for default did not stand as a bar to the presentation of a fresh application and, therefore, O.9, R.9, C.P.C. has no application to a probate proceeding. In support of the contention, he relied on the case of Ramani Devi v. Kumud Bandhu, (1910), 14 Cal WN 924; Surya Kumar Dev Choudhury AIR 1926 Cal 1057 (supra); Gorakh Ahir v. Jamuna Ahir, AIR 1943 Pat 281. The contention does not bear close scrutiny, and it is rejected. The provision of O. 9, R. 9 does not warrant such a conclusion. The existence of a remedy by presentation of a fresh application cannot be a ground for holding such a view. Order 9, Rule 9 of the Code consists of two parts: the first part prohibits bringing of a fresh suit in respect of the same cause of action, and the second part prescribes a remedy to remove the order of dismissal of the suit. The ban in the first part has been lifted by the Act, but the second part exists, and it can be availed of. The case also has no bearing on the question before us. In these cases, the question was whether a probate proceeding dismissed for default of appearance barred the presentation of a second application on the doctrine of res judicata or under O. 9, R. 9 of the Code, and the question was answered in the negative. In none of these cases, it was held that O. 9, R. 9 could only be invoked in cases where the filing of a fresh petition was barred under the law. 43. For all reasons above, I am of the opinion that the appeal before us arising out of the order made under O. 9, R. 9 of the Code is competent. 43. For all reasons above, I am of the opinion that the appeal before us arising out of the order made under O. 9, R. 9 of the Code is competent. I am in respectful agreement with the view expressed in AIR 1919 Mad 112; AIR 1936 Lah 863; and AIR 1971 Pat 391 . I am also of the opinion that in Debi Charan v. Lilamani Debi, ILR (1949) 1 Assam 54, the Division Bench of this Court has laid down the correct proposition of law on the question. 44. As to the merits of the case, I agree with the views of my learned colleagues that the appeal should be allowed, and the case remitted to the District Judge for disposal on merits. The parties will bear their own costs. Appeal allowed.