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1981 DIGILAW 72 (CAL)

Nityananda Pramanick v. Phurubala Pramanick

1981-02-26

SUDHINDRA MOHAN GUHA

body1981
JUDGMENT The judgment of the Court was as follows :–– This application for revision arises out of an order passed by Sri P. P. Roy, Additional District Judge, Nadia arising out of an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the order of Probate granted on 21.3.78 in O. S. No. 6/76. 2. It is contended by Mr. S. S. Ray, learned Advocate for the petitioner that the learned Judge committed an error in setting aside the impugned order on an application of the provision of Order 9, Rule 13 of the Code of Civil Procedure. According to him, the opposite party could file an application under section 263 of the Indian Succession Act for revocation of the grant of Probate for just cause as provided therein. Mr. Ray also relies on the decision in the case of (1) Ramani Devi v. Kumud Bandhu, reported in 14 CWN 924. It is held therein that an Executor presenting an application for Probate of a Will cannot be regarded as a plaintiff who brings a suit in respect of a cause of action. At page 926 of the report it is observed by their Lordships that the provisions of the Civil Procedure Code are not applicable to probate proceedings in their entirety for instance, section 375 of the Code, 1882 is not applicable to an application for Probate nor is that section applicable to a proceeding for revocation of Probate. Last of all, Mr. Ray draws my attention to a recent decisions of the Division Bench in the case of (2) Kanai Lal Khan v. Anil Kumar Khan, reported in 78 CWN 25. It was laid down therein that the provisions of Order 9, Rules 8 and 9 would have no application in Probate proceedings. In the principles enunciated by that Court, it is argued by Mr. Ray that the impugned order should not be set aside by the provisions of Order 9, Rule 13 of the Code of Civil Procedure. Mr. R. L. Tarafdar, learned Advocate for the opposite party contends that the opposite party did not file an application for revocation of Probate granted in favour of the petitioner. But her only prayer was to have the matter reheard in presence of the opposite party or in other words, she wanted retrial of the proceedings for Probate. 3. Mr. R. L. Tarafdar, learned Advocate for the opposite party contends that the opposite party did not file an application for revocation of Probate granted in favour of the petitioner. But her only prayer was to have the matter reheard in presence of the opposite party or in other words, she wanted retrial of the proceedings for Probate. 3. Accordingly, the provisions of Order 9, Rule 13 was applicable in such a case because in his opinion the proceedings before the learned District Judge in relation to Probate and Administration are regulated by the Code of Civil Procedure. He has placed reliance on section 268 of the Indian Succession Act. Section 268 lays down that the proceedings of the Court of the learned District Judge in relation to the granting of Probate and Letters of Administration shall, save as hereinafter otherwise provided, be regulated as far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. It is apparent that the provisions of the Code of Civil Procedure would not be applicable wherein other provisions in the Indian Succession Act have been made. 4. Mr. Ray in reply pointed out that such provisions are made in section 263 of the Act and as such, the provisions of Order 9, Rule 13 could not be applicable. Mr. Tarafdar relies on the decision of the case of (3) Sakuntala Dassi v. Kusum Kumari Sarkar, reported in AIR 1971 Orissa at page 103. In this case the application for withdrawal of a proceeding for Probate was allowed to be withdrawn as there was nothing contrary in the Succession Act. This decision has got little application to the present controversy before us. 5. Thus having regard to the decisions of this Court I am of opinion that provisions of Order 9, Rule 13 would not be applicable for recalling the order granting Probate. In the result, this application for revision succeeds. There will be no order as to costs. The Rule is accordingly made absolute.