JUDGMENT Suhas Chandra Sen, J. This appeal arises out of an application made by Rabindra Nath Dutta, the appellant before us, for setting aside an ex parte order passed on 15th October, 1982 granting probate of a will executed by one Judhisthir Dutta. The learned Trial Judge held that the application was not maintainable on the ground that it had been made under Order 9, Rule 13 of the Code of Civil Procedure. The learned Judge did not express any opinion on the question whether there was sufficient cause for non-appearance of the applicant at the time when the matter was called on for hearing. It was held that the only procedure for setting aside the ex parte grant of probate was by way of an application under S. 263 of the Indian Succession Act. Reliance was placed on a judgement delivered by Sudhindra Mohan Guha, J. in the case of Nityananda Pramanick v. Phurubala Pramanick 1982 CLJ 286 for the proposition that the provisions of Order 9 Rule 13 of the Code of Civil Procedure were not applicable for recalling an ex parte order granting probate of a will. The application made under Order 9 Rule 13 was dismissed with costs in that case. 2. Mr. Chakrabarty, appearing on behalf of the appellants, submitted before us that the provisions of S. 263 of the Indian Succession Act, were attracted only when there was an actual grant of probate or letters of administration In this case, there was only an order or direction for granting of a probate. Until and unless probate was actually issued, the jurisdiction of the Court for revoking the probate under S. 263 could not be invoked. Reliance was placed for this proposition on a division bench judgement of the Bombay High Court in the case of Jamsetji Nassarwanji v. Hirjibhai Navroji Anklesaria ILR 37 Bombay 158 and in particular on the following passage at page 171 : “There was such grant in existence, and if Mr. Reliance was placed for this proposition on a division bench judgement of the Bombay High Court in the case of Jamsetji Nassarwanji v. Hirjibhai Navroji Anklesaria ILR 37 Bombay 158 and in particular on the following passage at page 171 : “There was such grant in existence, and if Mr. Tyabji under the terms of S. 234 had a jurisdiction on the grounds stated to hi to revoke the probate which we think is extremely doubtful, he certainly had no jurisdiction to purport to revoke a probate which had never been issued Quite apart from the fact that Letters Administration to the same estate had already been granted by him and that person who, he supposed had obtained probate, was already dead.” 3. It has also been argued that the application made under Order 9 Rule 13 should note have been dismissed in any event. Section 263 deals with revocation or annulment of a probate proceeding does not come within the ambit of S. 263. 4. Mr. P.K. Roy, on behalf of the respondents, has submitted that the ministerial act of actually granting a probate is really of no legal consequence in a case like this. As soon as an order for grant of a probate had been passed by this court, the applicant could have made an application for revocation of that grant under S. 263 of the Indian Succession Act. It was submitted that the observation of Bombay High Court in the case of Jamsetji Nassarwanti v. Hirji Navroji Anklesaria ILR 37 Bombay 158 on which reliance was placed on behalf of the appellants was made per incuriam and, was, in any event, erroneous in law. In support of this contention, Mr. Roy relied on a judgement of the Patna High Court in the case of Ram Parikha Rai & anr v. Sheo Pujan Rai AIR 1968 Patna 209 in which Mr. Justice Untwalia differed from the view pressed by the Bombay High Court and held that the grant of probate or letters of administration could be revoked under S. 263 of the Act, even though the probate or the letters of administration had not been actually issued under the seal of the Court. 5. Mr. Justice Untwalia differed from the view pressed by the Bombay High Court and held that the grant of probate or letters of administration could be revoked under S. 263 of the Act, even though the probate or the letters of administration had not been actually issued under the seal of the Court. 5. Mr. Roy further submitted that in view of the specific provisions of the Indian Succession Act for setting aside an ex parte order passed in a probate proceeding there was scope for invoking the general provisions of the Code of Civil Procedure. It was argued that S.263 was a section of very wide amplitude and an order of setting aside of a ex parte decree could only be passed under the circumstances mentioned in that section. 6. We are unable to uphold the contention of Mr. Roy that his application for setting aside the ex parte order grating probate was not maintainable having been made under Order 9 Rule 13 of the Code of Civil Procedure. The appellant did not appear when the matter was called on for hearing and consequently, the Court proceeded ex parte and a decree was made directing probate to be issued in favour of the respondent. It has specifically been provided by Order 3 Rule 13 of Code of Civil Procedure that in any case in which a decree is passed ex parte against the defendant, he may apply to the Court by which the decree was passed for an order to set it aside. If the Court is satisfied that the summons were not duly served to that he was prevented by sufficient cause from appearing when the suit was called on hearing, the Court has to make an order setting aside the decree as against him. 7. Now in this case, the appellant’s contention is that he was prevented by sufficient cause from appearing when the matter was called on for hearing. We fail to see why the appellant cannot maintain an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside of the decree. We are of the view that the rules laid down in Order 9 relating to hearing of a case ex parte as well as application for setting aside an ex parte decree are mattes of procedure. We are of the view that the rules laid down in Order 9 relating to hearing of a case ex parte as well as application for setting aside an ex parte decree are mattes of procedure. Section 263 confers upon a party certain substantial rights to apply for revocation or annulment of probate or letters of administration for just case. One of the grounds mentioned under S. 263 for revoking grant of probate is “the proceedings to obtain the grant were defective in substance.” But in this case, there was no defect in the proceeding. The Court had proceeded properly under the provisions of the Code of Civil Procedure and had passed an ex parte decree when it appeared to the Court that the appellant had not appeared at hearing in spite of summons being served n him. The matters proceeded ex parte strictly in accordance with law. There was no defect in the proceeding in substance or otherwise. The appellant’s case is that he was prevented by sufficient cause from appearing and contesting the matter when it was called on for hearing. The appellant is not complaining about any defect in the proceeding. The only prayer of the appellant is that he order should be recalled on the ground that he was prevented by sufficient cause from appearing in the matter. 8. The provisions of the Indian Succession Act are also very clear that in the matters of procedure of Code of Civil Procedure must apply. Part IX of the Indian Succession Act as indicated by the heading deals with “Probate, Letters of Administration and Administration of Assets of Deceased” and comprises of Ss. 217 to 369. Section 217 provides : “217. Application of Part–Save as otherwise provided by the Act or by any other law for the time being in force, all grants of probate and letter of administration with the will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may be, in accordance with the provisions of this part.” 9. Chapter I of part IX is headed “Grant of Probate and Letters of Administration” Chapter II deals with “Limited Grants”. Chapter III is headed “Alternation and Revocation of Grants” and comprises of Ss. 261, 262 and 263. Section 261 deals with what errors may be rectified by Court. Chapter I of part IX is headed “Grant of Probate and Letters of Administration” Chapter II deals with “Limited Grants”. Chapter III is headed “Alternation and Revocation of Grants” and comprises of Ss. 261, 262 and 263. Section 261 deals with what errors may be rectified by Court. Section 262 provides that where codicil is discovered after the grant of letters of administration with a will annexed, it may be added to the grant on due proof and identification. Section 263 deals with the revocation or annulment of grant of probate or letters of administration for just cause and is as under: “263. Revocation or annulment for just cause.–The grant of probate or letters of administration may be revoked or annulled for just cause Explanation–Just cause shall be deemed to exist where– (a) the proceeding to obtain the grant were defective in substance ; or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case ; or (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, thought such allegation was made in ignorance or inadvertently ; or (d) the grant has become useless and inoperative though circumstances ; or (e) the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.” 10. Illustrations (i) and (ii) only are relevant for our purpose in this case and are as under: “(i) The Court by which the grant was made had no jurisdiction. (ii) The grant was made without citing parties who ought to have been cited.” 11. This section has note made any provision for setting aside of an ex parte order granting probate on sufficient cause being shown by the defaulting party for its absence at the hearing of the case. It cannot be said that in this case the proceedings were defective in substance. 12. This section has note made any provision for setting aside of an ex parte order granting probate on sufficient cause being shown by the defaulting party for its absence at the hearing of the case. It cannot be said that in this case the proceedings were defective in substance. 12. Chapter IV of Part IX of the Indian Succession Act deals with the procedure to be followed and the Chapter heading is “Of the practice in granting and revoking probates and Letters of Administration.” Sections 266, 268 and 295 of Chapter IV are important for our purpose : 266. District Judge’s powers as to grant of probate and administration.–The District Judge shall have the 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. 268. Proceedings of District Judge’s 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. 295. Procedure in contentious cases–In any case before the District Judge in which 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, 1908 in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. 13. Chapter XXXV of the Rules of the High Court as Calcutta (Original Side) deals with testamentary and intestate succession. It has been provided in Rule 28 that upon the affidavit in support of the caveat being filed, the proceedings shall be numbered as a suit in which the petitioner for probate shall be the plaintiff and the caveator shall be the defendant. The petition for probate or letters of administration will be registered as a deemed to be a plaint filed against the caveator and the affidavit filed by the caveator will be treated as his written statement in the suit. The petition for probate or letters of administration will be registered as a deemed to be a plaint filed against the caveator and the affidavit filed by the caveator will be treated as his written statement in the suit. It has further been provided “the proceedings in such suit shall, as nearly as may be, be according to the provisions of the Code.” In view of the clear provisions of S. 268 and also the Rules of this Court, the contention of Mr. Chakravarti must be upheld. Section 263 merely lays down the right to have the will revoked under the circumstances set out therein. It does not lay down the procedure that will have to be followed to enforce the right. Mr. Roy strongly relied on a Division Bench judgment of this Court in the case of Southern Bank Ltd. v. Kesardeo Caneriwalla & ors. AIR 1958 Calcutta 377 in which it was held that S. 263 was exhaustive and the revocation could not be ordered except on one or other of the grounds set out therein and that was so whether the application for revocation was made to this Court on its Original Side or elsewhere. This English rule had no application in these proceedings. 14. So far as the right to have a grant of probate or letters of administration revoked is concerned, the grounds may have been defined exhaustively under S. 263. The question before us, however, is whether the procedure laid down in the Code of Civil Procedure was applicable in a probate proceeding and if so, whether Order 9, Rule 13 was attracted in a case where a grant of probate was made ex parte. It was pointed out by Sarkar J. at page 392 : “I do not think that the application of the English rule in this Court can be justified by Ch. 35, R. 33. Rule 33 makes English rule of procedure applicable here but the English rule which we are asked to apply in this case deals with a party’s right to have a grant called and the will proved afresh in solemn form and is not a matter of procedure.” 15. In our opinion, this distinction between the rules of procedure and the substantive rights granted under the Indian Succession Act has to be borne in mind in deciding the question raised in this case. In our opinion, this distinction between the rules of procedure and the substantive rights granted under the Indian Succession Act has to be borne in mind in deciding the question raised in this case. In matters of procedure the Code of Civil Procedure must apply. It has been made specifically applicable by S. 268. Under the High Court Rules, the Code has also been made applicable and the proceedings have been treated as a suit. All the necessary corollaries and consequences of a probate proceeding being a suit will automatically follow. 16. The view expressed by Sarkar J. in the Southern Bank’s case is in consonance with the views expressed by a Division Bench of the Bombay High Court in the case of Indrajit Singhji Vijay Singhji v. Rajendrasinghji Vijaysinghji AIR 1956 Bombay 45. In that case Chagla CJ. Observed that S. 86 of the Code of Civil Procedure which gave certain immunity to rulers of a Foreign State could note be made applicable to a probate case. This view was taken n the ground that S. 86 did not deal with procedure but granted substantive rights to the rulers of a Foreign State. It was held in that case that it was only the procedure provided in the Code in regard to suits which had been made applicable to other proceedings by S. 141 of the Code of Civil Procedure. But in the Code there were provisions which dealt with substantive rights and those provisions could note be made applicable to a probate proceeding. It was observed at page 49 of the report : “Mr. Desai has also sought to argue that, apart from S. 141 by reason of S. 268 the proceedings must be regulated by the Code of Civil Procedure and, therefore, S. 86 would apply to these proceedings. Our answer to this contention is the same that we gave with regard to the arguments advanced with reference to S. 141 Regulating proceedings does note include conferring rights and imposing disabilities, and what S. 268 does is nothing more than S. 141. It 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.” 17. In our opinion, in view of the clear provisions of Ss. It 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.” 17. In our opinion, in view of the clear provisions of Ss. 268 and 295 of Indian Succession Act, and S. 141 of the Code of Civil Procedure, the Court has to follow the procedure laid down in the Code of Civil Procedure for the purpose of granting probate but the substantive rights are all governed by whatever has been provided by the Indian Succession Act. Section 263 does not deal with the procedure but has given certain rights to have the grant of a probate or letters of administration revoked in certain circumstances Section 263, in our opinion, has got nothing to do with the case where a grant of probate has been made ex parte and an application has been made for setting aside of that ex parte order by a party who alleges that he was prevented by sufficient cause from appearing at the hearing. This will be governed by the provisions of Order 9 Rule 13 of the Code of Civil Procedure and there cannot be any question of conflict between the provisions of S. 263 and the provisions of the Code of Civil Procedure in this regard. 18. In the case of Ramani Devi v. Kumud Bandhu Mukherjee 14 CWN 924 a Division Bench of this Court considered the question whether S. 103 of the Code of Civil Procedure of 1882 was a bar to a second application for probate after the first application had been dismissed for default under S. 102. Section 103 of the Code of 1882 provided that when a suit had been dismissed for default under S. 102, the plaintiff would be precluded from bringing a fresh suit in respect of the same cause of action. It was held in that case that the provisions of S. 103 of the Old Code would have no application to a probate proceeding. It was held in that case that the provisions of S. 103 of the Old Code would have no application to a probate proceeding. It was observed at page 28 ; “It was manifest therefore that the application by an executor for probate of the will has been dismissed for default, that fact by itself cannot debar an application for probate by another person, for example, a legatee who claims an interest under the will ; it so, it would be futile to hold that an executor who has made default, cannot propound the will again.” 19. This decision is not an authority for the proposition that the procedure laid down by the Code of Civil Procedure will not be followed in a probate processing. The views expressed in that judgment are in consonance with the views expressed by the Bombay High Court in the case of Indrajit Singhji Vijaysinghji v. Rajendrasinghji AIR 1956 Bombay 45, that in the matters of procedure, the Code of Civil Procedure will apply ; but those sections of the Code of Civil Procedure which give substantive rights to the parties or imposes disabilities will not apply to a probate proceedings. 20. In the case of Kanai Lal Khan v. Anil Kumar Khan 78 CWN 25 the contention of the appellant was that an application for grant of letters of administration was not maintainable in view of the dismissal of a previous application for non-prosecution. It was observed in that case at page 27 : "Section 295 of the Indian Succession Act provides that in contentious cases the proceedings shall take the form of a regular suit "as nearly as may be", it does not lay down that the provisions of the Code of Civil Procedure would apply in their entirety to such proceedings." It was held at page 28 : "The position, therefore, seems to be well established on the authorities that dismissal for default of an application for probate or letters of administration, not being an adjudication on the question of the genuineness and legal validity of the will, cannot operate as a bar to a second such application" 21. The case before us is not a case of dismissal for default of an application for a probate. The case has been heard and decided. The case before us is not a case of dismissal for default of an application for a probate. The case has been heard and decided. An ex parte decree has been passed granting probate and the appellant's case is that he was prevented by sufficient cause from appearing when the matter was called on for hearing. In the case of Ramani Devi vs. Kumud Bandhu Mukherjee 14 CWN 924 and also in the case of Kanailal Khun vs. Anil Kumar Khan 78 CWN 25 the question of applicability of Order 9 Rule 13 in a probate proceeding did not come up for consideration at all. The reliance that was placed on these two cases in the judgment in the case of Nityananda Pramanick v. Phurubala Pramanick 1982 Calcutta Law Journal 286 was misplaced. If the proceeding for hearing of an application for grant of probate has to be governed by the Code of Civil Procedure and if a decree has been passed granting probate ex parte for default of appearance of one parties, we fail to see why the defaulting party cannot make on application under Order 9 Rule 13 for recalling or setting aside of the ex parte order on the ground that he was prevented by sufficient cause from appearing when the matter was called on for hearing. 22. The question of applicability of Order 9 Rule 13 of the Code to a probate proceeding came up directly for consideration in the case of Mrs. Tribeni Kuer & anr. v. Shankar Tiwari & ors. AIR 1971 Patna 391. In that case, a Division Bench of the Patna High Court held that the provisions of Order 9 Rule 13 of the Code of Civil Procedure were applicable to probate proceedings. We are in respectful agreement with the views expressed in that judgment by the learned Judges of the Patna High Court. 23. The appeal is treated as on the day's list by consent of the parties and the appeal and the application is disposed of by this order. 24. In the facts and circumstances of the case, this application succeeds and the appeal is allowed and the order passed by the trial Court is set aside. 25. 23. The appeal is treated as on the day's list by consent of the parties and the appeal and the application is disposed of by this order. 24. In the facts and circumstances of the case, this application succeeds and the appeal is allowed and the order passed by the trial Court is set aside. 25. We make it dear that we have gone only into the question of applicability of Order 9 Rule 13 to a probate proceeding in this appeal because that was the only point that was decided in the judgment under appeal. The case is now remanded to the trial Court for deciding the order questions that were raised before it. Costs of this appeal will be costs in the application. T. K. Basu, Acting C. J. :– I agree. Appeal allowed, Order set aside.