LEELAWATI Vs. EMANUEAL

JUDGEMENT

(1.) THIS appeal under Order 43 Rule 1 (d) of the Code of Civil procedure {for short the CPC} read with Section 299 of the Indian succession Act, 1925 {for short the Act} has been filed against the order dated 05. 04. 2005 passed by the 16th Additional District Judge, indore in M. J. C. No. 04/2005 (Old No. 3/2002 ).

(2.) BRIEFLY stated the respondent filed an application under Section 372 of the Act (which ought to have been filed under Section 276 of the Act) for grant of Probate of the Will said to have been executed by his brother deceased Daniel Robert in his favour. The application was registered as Probate Case No. 9/98, (New No. 31/2000 ). On being noticed the appellants appeared and participated in the few proceedings. However, after participating in few proceedings they remained absent and as such the Trial Court proceeded ex-parte against them. The Trial Court after recording ex-parte evidence of the respondent and his witnesses vide its order dated 07. 01. 2002 granted probate in favour of the respondent. On getting the knowledge of passing of said ex-parte order dated 7. 01. 2002 the appellants moved an application on 14. 01. 2002 under Order 9 Rule 13 read with section 151 of the CPC for setting aside the ex-parte order and also for revocation of probate, if issued in favour of the respondent.

(3.) THE aforesaid application MJC No. 3/2002 (New No. 04/2005)was opposed by the respondent by filing reply. The 4th Additional district Judge, recorded the evidence and fixed the case for arguments. At that stage the appellant filed an application dated 25. 6. 2004 under Order 6 Rule 17 read with Section 151 of the CPC seeking amendment in the application dated 14. 01. 2002 so as to make it as an application under Section 383 of the Act read with Order 9 rule 13 of the CPC and also sought amendment in the application so as to treat it as an application for revocation of order dated 7. 1. 2002 granting probate to the respondent and for revocation of certificate of probate granted in favour of the respondent.