Decided on November 22,1983

Judhisthir Dutta And Anima Dutta Appellant
Bhanumati Dutta And Anr. Respondents


S.C. Sen, J. - (1.) This appeal arises out of an application made by Rabindra Nath Dutta, the appellant before us, for setting aside an ex p e 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 Section 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 Section 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 Section 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 Nassarwanti v. Hirjbhai Navroji Anklesaria ILR 37 Bombay 158 and in particular on the following passage at page 171: "There was no such grant In existence, and if Mr. Tyabji under tho terms of Section 234 had a jurisdiction on the grounds stated to him 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 not have been dismissed in any event Section 263 deals with revocation or annulment of a probate or letters administration for just cause Setting aside of an ex parte order in a probate proceeding does not come within the ambit of Section 263.;

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