JAIN, J. - (1.) THIS Revision Petition has been filed against the order of Shir Salig Ram Chouhan, District Judge, Balotra dated March 05, 1993 by which he was dismissed two applications of the petitioners, one moved under Order 22 Rule 3, C. P. C, and another under Order 1 Rule 10, C. P. C.
(2.) THE facts of the case giving rise to this Revision Petition may be summarised thus. THE petitioner Satyawati filed a petition under Section 276, Indian Succession Act (hereinafter to be called 'the Act') for the grant of probate in respect of the will Ex.-1 dated April 06, 1987 executed by Smt. Champa Devi in her favour.- She impleaded State of Rajasthan and Jugal Kishore, Nawal Kishore and Vimal Kishore, sons of Devi Sahaya, as non- petitioners. THE non-petitioners filed their written replies, seriously opposing the petition. On October 05, 1990, five issues were framed by the learned District Judge, Balotra. Issue No. 3 is whether Satyawati is not entitled to get probate of the will for the reasons mentioned in para No. 4 of the reply filed by non-petitioners No. 2,3 & 4. One of the grounds of objection is that no executor has been named in the will Ex.-l. On May 15, 1992, Mahendra Kumar moved an application under Order 22 Rule 4 (subsequently amended as 3), C. P. C. stating that Satyawati has died on 18. 02. 92 leaving behind him and other legal representatives mentioned in the application and praying that they may be brought on record in her place. On 27. 08. 92, another application under Order 1 Rule 10, C. P. C. was moved by the legal representatives for impleading them in place of late Satyawati. After hearing the learned counsel for the parties, both the applications were dismissed by the learned District Judge on the ground that the right of an executor is a personal one and the legal representatives cannot be brought on record in his place, relying upon Section 222 and 223 of the Act. It is contended by learned counsel for the petitioners (legal representatives of late Satyawati) that admittedly the petition moved under Section 276 of the Act was contested by the non- petitioners, issues were framed, evidence was recorded, thereafter, Satyawati died, the said proceedings continued as a suit, the provisions of order 22 Rule 3, C. P. C. were clearly attracted and the learned District Judge has seriously erred in rejecting the application on merits of the case in respect of which issue No. 3 has been framed. Learned counsel for the non-petitioners tried his best to support the order under challenge. It is not in dispute that the application moved under Section 276 of the Act was being contested by the non-petitioners. Section 295 of the Act was attracted. According to it, the petition is treated as a regular suit and its trial is governed by the provisions of the Code of Civil Procedure. This Section runs as under : "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. " As such the provisions of Order 22 Rule 3, C. P. C. were attracted. The learned District Judge should have allowed the application of the legal representatives moved under Order 22 Rule 3, C. P. C. He was not at all justified to discuss about the merits of the case in respect of which issue No. 3 has been framed. It was not the proper stage. He was only to see whether the legal representatives were to be brought on record in place of late Satyawati or not. Accordingly, the Revision Petition is allowed. The order of the learned District Judge, Balotra dated March 05, 1993 is set aside. The case is remanded to him to decide it in accordance with law. The application moved under Order 22 Rule 3, C. P. C. by the legal representatives of late Satyawati is allowed. They are brought on record in place of late Satyawati. The parties are directed to appear before the District Judge, Balotra on November 01, 1994. . ;