TRIBENI KUER Vs. SHANKAR TIWARI

JUDGEMENT

(1.) This revision is directed against the order dated 20-12-1968 passed by the District Judge of Saran setting aside an ex parte order dated 25-4-1966 in Revocation Case No. 7 of 1965.

(2.) One Ramauva Tiwary obtained a probate of a will dated 15-4-1889 executed by Nand Kumar Tiwary. common ancestor of the parties. The petitioners filed a petition before the District Judge, Saran, for revocation of the aforesaid probate of the will under Section 263 of the Indian Succession Act. The said application was registered as Revocation Case No. 7 of 1965. The contention of the petitioners in the revocation case was that Ramagva Tiwary in collusion with others filed the probate case without impleading the petitioners as party to the proceedings and hence they prayed for revoking the grant of probate. It is alleged that the opposite party did not appear in spite of service of notice on them and hence the matter was taken up ex parte for hearing before the District Judge who by his order dated 25-4-1966 allowed the prayer of the petitioners and the grant of the probate of the will in question was revoked.

(3.) Thereafter, the opposite party filed an application under O. IX, Rule 13 of the Code of Civil Procedure for setting aside the ex parte revocation order passed by the District Judge on 25-4-1966. The learned District Judge, on a consideration of the evidence adduced before him held that there was sufficient cause for the non-appearance of the opposite party when the Revocation Case No. 7 of 1965 was called out for hearing. Accordingly, the learned District Judge by his order datod 20-12-1968 set aside the ex parte order passed in Revocation Case No. 7 of 1965.