BIPIN BEHARY AUDDY Vs. PURUSOTTAM ADHYA AND ANRS.

JUDGEMENT

(1.) This revisional application under Sec. 115 of the Code of Civil Procedure is at the instance of a defendant in a probate proceeding and directed against order No. 166 dated Aug. 25, 1998 passed by the learned Judge, 9th Bench, City Civil Court at Calcutta in O.C. Suit No. 7 of 1998 thereby allowing an application under Order 1 Rule 10 (2) of the Civil Procedure Code.

(2.) The only question that arises for determination in this revisional application is whether on the death of the sole executor in a probate proceeding, a legatee under the Will can come forward and pray for being added as plaintiff for the purpose of carrying on with the said proceeding with a modified prayer of Letters of Administration.

(3.) The aforesaid probate proceeding was initiated by two named executors. On the death of one of them, are other was proceeding with the same. The second executor also having died, the present opposite p ies came up with an application under order I Rule 10 of the Code thereby praying for being substituted as plaintiff Nos. 3 and 4 in the said proceeding so that they could pray for Letters of Administration. There is no dispute that in the Will, the applicants under Order 1 Rule 10 of the Code are named legatees.