SARAMMA THOMAS Vs. REV FR KURIAKOSE

JUDGEMENT

(1.) THIS appeal is directed against the order passed by the District Judge, Ernakulam dismissing I. A. 403/83 in O. P. 143/1980.

(2.) APPELLANTS herein filed O. P. 143/1980 under S. 276 of the Indian Succession Act (for brevity'the Act')seeking issue of letters of Administration in respect of will dated 15-9-1976 said to have been executed by one Anna who died on 7-2-1980. They were represented by Advocate Sri. R. C. Plappally. The petition was opposed by the respondents herein. There was a move for settlement of the dispute between the parties and the case was being adjourned for settlement or enquiry. On 21-11-1983 on the ground that appellants and their counsel were absent, the O. P. was dismissed for default. APPELLANTS filed I. A. 403/83 through Advocate Sri. Easwara Iyer seeking restoration of the O. P. under Order IX R. 9 of the Code of Civil Procedure (for brevity 'the Code') praying that the O. P. may be restored to file. The petition was dismissed and hence this appeal.

(3.) OUR attention has been invited to a number of decided cases. In Ramani Debi v. Kumud Bandhu Mukherjee (1910 (VII) Indian Cases 126), the Calcutta High Court after considering s. 13,102 and 103 of the Civil Procedure Code, 1882, took the view that if an application by an executor for probate of a will has been dismissed for default under S. 102 of that Code (corresponding to Order IX R. 8 of the Code) that will not debar a second application f6r probate of the same will and S. 103 of that code (corresponding to Order IX R. 9 of the Code) will not apply. This view has been followed by the Madras High Court in Ganshamdoss Narayandoss versus Saraswathi Bai & ors. (AIR 1925 Mad. 861), the Calcutta High court in Suriya Kumar v. Jaynarayan (AIR 1926 Calcutta 1057), the Patna High Court in Gorakh Ahir v. Jamuna Ahir (AIR 1943 Patna 281) and the Bombay High Court in Sadashivrao v. Anandrao (AIR 1973 Bombay 284 ).