1. The appellant and the respondents are brothers and are the sons of Sir Raghunathrao Shankarrao Gandekar, the former Raja of Bhor. The appellant had filed an application in the District Court at Poona being Misc. Application No. 310 of 1963 for Letters of Administration to the estate of the said deceased Raja of Bhor. This application was dismissed for default on 11th January 1967. Thereafter, on 25th March 1967 the appellant filed another application being Miscellaneous Application No. 116 of 1967 in the same Court. By this application the appellant applied for Letters of Administration in respect of the property of the said Raja of Bhor mentioned in the Schedule annexed to the application, and in the alternative prayed that if the said application was held to be not maintainable, then the original application No. 310 of 1963 should be restored to the file and the delay in making the application for restoration should be condoned. This application was transferred for hearing to the Court of the learned Civil Judge, Senior Division, Poona and renumbered as Miscellaneous Application No. 285 of 1967.
2. The learned Civil Judge held that this application, being a second application for Letters of Administration, and the first application No. 310 of 1963 having been dismissed for default, was barred under the provisions Order 9, Rule 9 of the Civil Procedure code, 1908. He further held that as far as the alternative prayer for restoration of the Miscellaneous Application No. 310 of 1963 was concerned, the same was liable to be rejected as no satisfactory reason was shown by the appellant for default of appearance at the time when that application was dismissed and as the application for restoration was beyond time by thirty days. It is against this order that the appellant has come in appeal.
3. The main contention of Mr. Adik, who appeared for the appellant, was that the learned Civil Judge was in error in holding that the provisions of Order 9, Rule 9. Civil P. C. were applicable to an application for grant of Letters of Administration. It was his submission that even if such an application was dismissed for default without disposal on merits, it was always open for the appellant to file a fresh application for grant of Letters of Administration and the provisions fo Order 9, Rule 9, Civil P. C. had no application to such an application. Mr.Adik has drawn my attention to the decision of a Division Bench of the Patna High Court in Gorakh Ahir v. Jamuna Ahir : AIR1943Pat281 in which it has been held that the provisions of Order 9, Rule 9, Civil P. C. cannot be applied to the case of an application for grant of probate of a Will. The Division Bench of the Patna High Court in this decision has relied upon the decision in Ramai Devi v. Kumud Bandhu, (1910) 12 Cal LJ 185 : 14 Cal WN 924 where it has been held that the dismissal for default of an application for probate does not amount in law to an adjudication upon the question of the genuine character and legal validity of the Will and, there, such a dismissal cannot debar a second application for probate by an executor or by any other person, for instance, a legatee claiming an interest under the Will. In that case, the section under consideration was Section 103 of the Civil P. C. of 1882, the provisions of which are in pari materia with the provisions of Order 9, Rule 9 of the Civil P. C. 1908. As pointed out in that case, it has to be borne in mind that the provisions of the Code of Civil Procedure are applicable to probate proceedings only in so far as the circumstances of the case admit. The judgment in a probate proceeding operates as a judgment in rem unlike a decision in an ordinary suit which operates inter parities. In my view, it would not be proper to apply the provisions of Order 9, Rule 9, Civil P. C. which are intended to apply to suits for enforcement of causes of action, to applications for probate or Letters of Administration. In Surjya Kumar v. Jaynarayan AIR 1926 Cal 1057, a Division Bench of the Calcutta High Court has taken the view that the dismissal fo a prior application for probate without trial fo the question of genuineness or validity of the will is not a decision binding for all purposes and that Order 9, Rule 9, Civil P. C. does not apply to such cases.
4. Mr. Nargolkar, who appeared for the respondents, has on the other hand, relied on the decision of the Single Judge of the Lahore High Court in Manohar Lal v. Rule Lal, AIR 1936 Lah 712 where it has been held that Order 9, Rule 9, Civil P. C. applies to probate proceedings and hence an appeal is competent from an order dismissing an application to set aside an order of dismissal in default of an application for probate. It is significant that Jai Lal, J., who delivered this judgment, has expressly stated as follows (page 712) :
'............ It is not necessary for me to decide whether under the circumstances a fresh application for probate lies for that question is not involved in this case.'
It is, of course, true that if the provisions of Order 9, Rule 9, Civil P. C. are applicable to the applications for probate and Letters of Administration, then a fresh application would be barred. It appears to me, with respect that the learned Judge has not taken into account that in an application for probate there is no cause of action to be determined between the two parties as such. With respect to the learned Judge, I prefer the view which has been taken by the Calcutta and Patna High Courts and which has also been approved by the Madras High Court in Ghanshamdoss Narayandoss v. Saraswati Bai, : AIR1925Mad861 .
5. The next contention, which was urged by Mr. Nargolkar, was that the application for Letters of Administration was not maintainable, because it was sought to be restricted to the assets shows in the Schedule to the application. It was his submission that such a restricted grant cannot be applied for. In my view, this is a contention, which can be conveniently disposed of by the learned Civil Judge, Senior Division, when he considers the application for grant of Letters of Administration afresh. As I am of the view that the appellant was entitled to file a fresh application for Letters of Administration as he has in fact done and that the provisions of Order 9, Rule 9, Civil P. C. are not applicable to the application in question, the question of restoration of the original application or petition does not arise.
6. In the result, the orders of the learned Civil Judge, Senior Division, Poona, dated 20th April 1968 will be set aside and the Miscellaneous Application No. 285 of 1967 is remanded to the Court of the Civil Judge, Senior Division, Poona, for disposal according to law. There will be no order as to costs.
7. Order accordingly.