Manohar Lall, J.:— This is an appeal by Gorakh Ahir who was an applicant for probate of a will before the learned Additional District Judge of Saran. The application for probate was filed in 1939; caveat was entered and the proceeding which was numbered as 4/4/3 of 1939/40, proceeded as a contentious suit. The 19th of July, 1941, was the date fixed for hearing. On that date when the case was called out for hearing, a petition was filed on behalf of the applicant asking for time on the ground that the natural guardian of the petitioner was ill and could not attend the Court. But the petition was rejected, as that was the only case left on the list for disposal on that date and the Court did not find it proper to rise 2½ hours earlier before the end of the day and also the case was a very old one. Accordingly the Court rejected the prayer for adjournment. The Court then asked the lawyer for Gorakh Ahir if he intended to go on with the case, but he said that he had no instructions to do so. Accordingly the case was dismissed for default. Thereafter on the 20th of July, 1941, Gorakh Ahir filed an application under Order IX, rule 9, Code of Civil Procedure, praying that the Court should restore the probate case. The learned Additional District Judge, after hearing the evidence, came to the conclusion that the guardian of the petitioner could have come to the Court and that he was not ill on the 19th of July, 1941, as was suggested in the earlier application and that the reason for not going on with the case was that the witnesses of the applicant were not ready. Accordingly he refused to restore the probate case, hence the appeal to this Court.
When the appeal was called on for hearing before us, the learned Advocate for the respondent took a preliminary objection that the appeal was incompetent because Order IX, rule 9, Code of Civil Procedure, has no application after the dismissal of an application for grant of probate. He relied upon the case of Ramani Debi v. Kumud Bandhu Mukerji where it has been held that the dismissal for default of an application for probate does not amount in law to an adjudication upon the question of the genuine character and legal validity of the will, and, therefore, such a dismissal cannot debar a second application for probate by an executor or by any other person, for instance, a legatee claiming an interest under the will. Mookerjee, J. reviewed the authorities dealing with the question and observed at page 189 that it would not be right to apply to such a proceeding the provisions of section 103 of the Code of Civil Procedure, which by its very terms, are plainly intended to apply to suits for enforcement of causes of action. This decision has been expressly approved by the Madras High Court in Ghanshamdoss Narayandoss v. Saraswathi Bai and has been followed by the Calcutta High Court itself in a later decision—Surjya Kumar Deb Chaudhury.
In my opinion this decision of the Calcutta High Court, which was pronounced in 1910, and has been held to be good law up to the present day, should be followed in this Court also. The petitioner will have to file another application for grant of probate. Then the matter will proceed as a contentious suit after a caveat has been entered. The provisions of Order IX, rule 9, Code of Civil Procedure, have no application in the circumstances.
The result is that without deciding whether the petitioner had or had not sufficient cause for not appearing when the probate case was called on for hearing on the 19th of July, 1941, the appeal must be dismissed with the above observations. In the circumstances, there will be no order as to costs here.
Harries, C.J:— I agree.
Appeal dismissed.
K.D