1. The question is whether Order IX, Rule 9, of the Code of Civil Procedure, is applicable to the dismissal of an application for probate which has under Section 83 of the Probate and Administration Act, V of 1881, been treated as a suit. That section directs that the proceedings shall take, as nearly as may be, the form of a suit according to the provisions of the Code of Civil Procedure, Section 55 of the same Act also applies these provisions to proceedings in relation to the grant of probate go far as the circumstances of the case admit. And we cannot find anything in the latter part of Order IX, Rule 9, which is the relevant provision in the present connection, which cannot be conveniently applied.
2. Respondents, however, argue, firstly, that that part of the rule can be applied only when the first part debarring the plaintiff from a second suit can be applied also, and they rely on Ramani Debi v. Kumud Bandhu 7 Ind. Cas. 126 : 14 C.W.N. 924 : 12 C.L.J. 185 for the position that it cannot. This decision met with some criticism in the referring order of Beaman, J., Kalyanchand Lalchand v. Sitabai Dhanasa 23 Ind. Cas. 325 : 38 B.k 309 : 16 Bom. L.R. 5 but we do not think it necessary at present to consider whether ii is correct; For we can see no reason for treating the applicability of the latter portion of Order IX, Rule 9, as conditional on that of the former or refusing effect to Section 55, Probate and Administration Act, on account of it. We, therefore, set aside the decision under appeal and remand the petition for re admission and disposal on its merits. Costs to date will abide the result and be provided for in the order to be passed.