JYOTIRMAY BHATTACHARYA,J. - (1.) Mr. Paul, learned advocate undertakes to file Vakalatnama on behalf of his client in course of this day. In spite of service of notice, none appears on behalf of the other respondents to contest this appeal.
(2.) An ex parte grant of probate by the District Delegate in a non -contentious case was sought to be revoked by the appellants herein by filing an application under Section 263 of the Indian Succession Act, 1925 on various grounds available under Section 263 of the said Act including the ground of non -citation on one of the legal heirs of the testator. By the impugned order, the appellants' said application under Section 263 of the said Act was rejected by the learned District Judge by holding, inter alia, that such an application in its present form is not maintainable before the District Judge. Learned District Judge held that having regard to the fact that probate was granted ex parte by the District Delegate, the only course which is left open to the party aggrieved, is to apply for setting aside such ex parte grant of probate under Order 9 Rule 13 of the Code of Civil Procedure before the District Delegate which granted such probate.
(3.) Thus, in substance, the learned District Judge held that for setting aside an ex parte grant of probate by the District Delegate, the provision contained in Section 263 of the said Act cannot be availed of by the aggrieved party. Learned District Judge was also of the view that such an ex parte grant of probate by the District Delegate can only be set aside by the District Delegate which granted such probate and that too by only following the provision contained in Order 9 Rule 13 of the Code of Civil Procedure. ;