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8. Appearing on behalf of the appellant, it was submitted by Mr. Mukherjee that applying the provisions of Section 141 of the Code and Sections 268 and 295 of the Indian Succession Act the learned court below should have held that the provisions of the Civil P.C. including those of Order 9, applied to a probate proceeding. Regarding the applicability of Section 141 of the Code he submitted that the rules laid down in Order 9 being matter of procedure, the provisions of Rule 9 of the said order were clearly applicable to a probate proceeding in view of Section 141. This apart Section 268 of the Indian Succession Act, according to him, clearly made the provisions of the Code applicable to a probate proceeding and under Section 295 of the said Act a contentious probate proceeding assumes the form and character of a regular suit as under the Civil P.C. and such proceedings are regulated by the said Code. That being so, the learned Judge in the Court below according to him, was wrong in dismissing the Misc. Judicial Case for restoration of the probate proceeding on the ground that Rule 9 of Order 9 of the Code has no application to such a proceeding. He also submitted that the learned Judge while relying upon the decision of this Court reported in (1974) 78 Cal WN 25 in support of his finding misread and misapplied it inasmuch as the said decision is not an authority for the proposition that Order 9 Rule 9 of the Code is not applicable to a probate proceeding.

25. This decision, therefore, is an authority for the proposition that the bar of Order 9 Rule 9 is not applicable to a probate proceeding dismissed for default of the petitioner and a fresh application for probate of the same Will is quite maintainable in law. It nowhere holds that Order 9 Rule 9 as such, is not applicable to a probate proceeding.

26. Similarly, the subsequent Bench decision of this Court in Kanailal v. Anil Kumar, (1974) 78 Cal WN 25 is also an authority for the same proposition that where an application for probate or letters of administration is dismissed for non-prosecution and not on an adjudication on merits, a fresh application for probate or letters of administration is not barred and the bar of Order 9 Rule 9 of the Code does not apply to such a case. This decision in our view and as was rightly pointed out by Mr. Mukherjee, was misread and misinterpreted by the learned court below as an authority for the proposition that Order 9 Rule 9 of the Code as such did not apply to a probate proceeding dismissed for default.

45. The first reason assigned by him is clearly based on misreading of an earlier decision of this court in the case of Rathindra v. Jyoti Bikash . Relying on the said decision he seems to have taken the view that Section 141 of the Code cannot be evoked for applying Order 9 Rule 9 of the Code to a probate proceeding. Unfortunately, he failed to appreciate that in the said decision this court merely held that a proceeding under Order 9 Rule 9 of the Code is not an original proceeding to which by virtue of Section 141 of the Code the provisions of Order 39 Rules 1 and 2 of the Code can have no application. That decision itself indicates that other provisions of the Code relating to suits may be invoked and made applicable to a probate proceeding in view of Section 141 of the Code. The learned Additional District Judge made a confusion in not taking note of the distinction between a proceeding under Order 9 and application of Order 9 to other original proceedings like probate proceeding.

46. The second reason assigned by the learned Additional District Judge is that Order 9 Rule 9 or Order 9 Rule 13 can have no application on its terms to a probate proceeding. Reliance has been placed on a Bench decision of this court in the case of Kanailal Khan v. Anil Kr. Khan (1974) 78 Cal WN 25. It must be stated that on this point there is some divergence of judicial opinion. The learned single Judge of this court in the case of Nityananda v. Phurubala (1982) 2 Cal LJ 286 held that Order 9 Rule 13 of the Code cannot be invoked for reopening a grant made in a probate proceeding. That view was dissented from in a Division Bench decision in the case of Anima Dutta v. Bhanumati (1984) 1 Cal HN 182. In my view, the real import of the decision in the case of Kanailal Khan and the earlier decisions of this court on the point reviewed in that case is often misunderstood. All these decisions are good authority for the proposition that once a probate proceeding is dismissed for default without adjudication on merits, a fresh proceeding for grant would not be barred under Order 9 Rule 9 of the Code since such a proceeding for grant is not based on a cause of action. But Order 9 Rule 9 has two parts, while the first part bars a fresh suit based on the same cause of action, the second part provides for restoration of such a suit where the default is well explained by proof of sufficient cause for the default. When apart from Section 141 of the Code. Section 295 of the Indian Succession Act, expressly provides that such a proceeding shall take the form of a regular suit according to the provisions of the Civil P.C. there is no reason why the second part of Order 9 R. 9 cannot be invoked for the purpose of restoring such a proceeding dismissed for default. This view finds support from the decision of the Lahore High Court in the case of Ruplal v. Manohar AIR 1936 Lah 863 and the earlier decisions of this court including the decision in the case of Kanailal Khan does not really militate against this view.