IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.41 of 2008 JHAGARU CHOUDHARY Versus SHEOBACHAN CHAUDHARY & ANR ----------- 2 8.7.2008 Heard Counsel for the petitioner. The petitioner seems to be aggrieved by an order dated 6.11.2007 whereby and whereunder the application filed by the opposite parties under order 9 rule 13 has been accepted for its being disposed of by way of Misc. Case No. 5/04. Counsel for the petitioner submits that in view of an earlier order passed by the same Court below dated 26.8.2004, the miscellaneous case filed by the opposite parties was not maintainable and as such, the Court below has committed irregularity in passing the impugned order by entertaining the application under order 9 rule 13 of the Code of Civil Procedure. In the considered opinion of this Court, such submission of the Counsel for the petitioner is absolutely misconceived inasmuch from order dated 26.8.2004 as contained in Annexure-1 it would appear that when opposite parties had approached the Court below by filing an application on 7.7.2004 under Section 151 of the Code of Civil Procedure, the Court below had held such application to be not maintainable because at that point of 2 time, when the probate case was still pending, the Court below did not find any reason to recall the ex-parte order for hearing the said probate case by entertaining their plea as with regard to allowing to lead evidence and contest the case. After the probate was granted on 14.9.2004, the opposite parties had again moved the same Court by filing an application under order 9 rule 13 of the Code of Civil Procedure and this time, the Court has only started enquiry by accepting the application and instituting Misc. Case No. 5/04. Such exercise of discretion by the Court below in exercise of power under order 9 rule 13 cannot be said to be vitiated on any account much less by any material irregularity or jurisdictional error. Accordingly, there is no merit in this civil revision application is hereby dismissed. Rsh (Mihir Kumar Jha, J.)