RAM SAGAR SINGH @ RAMASHREY SINGH S/O LATE BINDESWARI SINGH @ BINO SINGH Vs. GANGA DEVI W/O SACHIDANAND SINGH

JUDGEMENT

(1.) Heard Mr. Shiv Nandan Rai, learned Senior Counsel appearing on behalf of the petitioner and Mr. Dhruv Narayan, learned Senior Counsel appearing for the opposite parties. This Civil Revision application is directed against the order dated 5.8.2010 passed in Miscellaneous Case No. 02 of 2008, whereby learned Additional District Judge, F.T.C.-II, Lakhisarai has been pleased to allow the application filed by the petitioner-opposite party no. 1 under Order 9 Rule 9 of the Code of Civil Procedure (hereinafter referred to as the "Code") and recalled the order dated 19.2.2008 whereunder Probate Case No. 14 of 1989 had been dismissed for default and as a consequence thereof Probate Case No. 14 of 1989 has been restored to its original file.

(2.) The order of the court below is sought to be questioned in the backdrop of the Division Bench pronouncement of this Court, (Magan Singh vs. Deonandan Missir and Others, 1963 AIR(Pat) 83) holding the provisions of Order 9 Rule 9 of the Code not applicable to probate proceedings dismissed for default relying upon a judgment of this Court, (Gorakh Ahir vs. Jamuna Ahir, 1943 AIR(Pat) 281).

(3.) Following the judicial pronouncement in the case of Magan Singh it is contended that the order passed by the learned court below restoring the probate proceedings is not sustainable.