AKHAURI KRISHNA KUMAR Vs. MUNDRIKA PRASAD

JUDGEMENT

(1.) On an application by the sole respondent under S.276 of the Succession Act for grant of a probate in respect of the estate of the deceased Smt. Munga Devi, on the alleged will dt. 3-3-1979, Probate Case No. 194 of 1979 was registered. This Probate Case No. 194 of 1979 was allowed on 27-1-1981 and an ex parte order was passed. Thereupon the appellants filed an application under O.9, R.13 of the Civil P.C. (hereinafter referred to as 'the Code') for setting aside the ex parte order passed in the aforesaid probate case. This was registered as Misc. Case No. 39 of 1981. The Court below by the impugned order dt. 27-1-81 dismissed the said miscellaneous case holding that the appellants have not been able to prove that the notices were not duly served upon them or that they were prevented by any sufficient cause for appearing in the case when the case was taken up for ex parte hearing. Hence the present appeal by the appellants.

(2.) It is well settled that the provisions of O.9 R.13 of the Code are applicable to probate proceedings and the learned counsel for the respondent has not contested this well established principle of law.

(3.) It is pertinent to mention here that appellant No. 1 (Akhouri Raghubir Lal) died during the pendency of the appeal and his heir and legal representative has been substituted and hereafter when I would refer to appellant No. 1, it would mean original appellant No. 1 (Akhouri Raghubir Lal).