Vijender Jain, J.

1. Learned Counsel for the appellant has impugned the order passed by the learned Single Judge on March 23, 2004 disallowing the application of the appellant by which the appellant took the plea that the probate petition was barred by limitation.

2. It was argued by the learned Counsel for the appellant that in view of Kerala State Electricity Board v. T.P. Kunhaliumma, AIR 1977 SC 282 [LQ/SC/1976/406] , where the Supreme Court held as under :

Theconclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil Court.With respect, we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case (AIR 1969 SC 1335 [LQ/SC/1969/137] ) (supra) and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a Court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act.

3. On the same analogy, Article 137 of the Limitation Act would apply to proceedings for grant of probate.Learned Counsel for the appellant on the basis of a decision of the Division Bench of Punjab & Haryana High Court in Hari Narain (deceased) through LRs. v. Subhash Chander & Ors., AIR 1985 P&H 211 [LQ/PunjHC/1985/130] argued that Article 137 of the Limitation Act, 1963 would apply to any petition or application filed in a Court where no other period of limitation has been prescribed.On the aforesaid basis it was contended before us that inPamela Manmohan Singh v. State & Ors., 83 (2000) DLT 469 [LQ/DelHC/1999/1294] , one learned Single Judge of this Court extended the ratio of the decision in Hari Narains case applying the same principle in a case of grant of probate mutatis mutandis to cases pertaining to grant of probate. However, in the judgment impugned before us learned Single Judge, apart from holding that right to apply for probate or letter of administration is a recurring one, held that it would be inappropriate to fall back upon Article 137 of the Limitation Act.He has also noticed in the impugned judgment Ramanand Thakur v. Parmanand Thakur, AIR 1982 Patna 87 and Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, AIR 1983 Bombay 268 in support of the impugned order.

4. In our considered opinion the approach of learned Single Judge in impugned order is correct. In E. Devarajan v. E. Ramiah, AIR 1991 Madras 214, a Division Bench of the Madras High Court held:

Ina proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant.The applicant only seeks recognition of the Court to perform a duty.Probate or letter of Administration issued by a competent Court is conclusive proof of the legal character throughout the world. An assessment of the relevant provisions of the Indian Succession Act, 1925 does not convey a meaning that by the Proceedings filed for grant of probate or letters of administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate or letters of administration only seeks the permission of the Court to perform that duty. There is only a seeking of recognition from the Court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. With aview to discharge the moral duty, the applicant seeks recognition from the Court to perform the duty.It will be legitimate to conclude that the proceedings filed for grant of probate or letters of administration is not an action in law.Hence, it is very difficult to and it will not be in order to construe the proceedings for grant of probate or letters of administration as applications coming within the meaning of an application under Article 137 of the Limitation Act, 1963.

5. The distinguishing feature on the basis of which Hari Narains case (supra) was decided was that in the said case a suit was filedfor revocation of a probate.Mutatis mutandis that principle cannot be applied to a petition for grant of a probate.In an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition from the Court to perform a duty.Probate or letter of administration is a conclusive proof of the legal character of that right. In a petition for revocation of probate, it is after grant of probate or letter of administration, a suit is filed for revocation of probate or grant of letter of administration. Cause of action in such cases arises when probate or letter of administration has been granted. Therefore, in such cases Article 137 of the Limitation Act would come into play. But it is not vice-versa. Therefore, the view taken by the learned Single Judge in Pamela Manmohan Singhs case(supra)is not correct.Before parting with the case, we must observe that in this case our attention was drawn by learned Counsel for the appellant to Section 3 of the Limitation Act to advance his plea that even if he has not taken it in the written statement to the probate proceedings filed by respondent, still Article 137 of the Limitation Act would apply.We have perused through the impugned order passed by the learned Single Judge that a suit was filed by the appellant challenging the Will, that suit has been dismissed for non-prosecution. Restoration of that suit has not been sought by the appellant.The suit of the appellant was filed in the year 1990.Suit was dismissed on 12th February, 2003, petition for probate was filed in the year 1996 and that proceedings were ordered to be taken up along with Suit No. 644/90 which was filed by the appellant, neither in the written statement nor at the time of examination of witnesses it was pleaded by the appellant that probate petition is barred by limitation.For all these years it was not pleaded by the appellant that the probate proceedings suffered from delay and laches and law of limitation would be applicable. Plea of limitation in this case will be based on certain facts which have not been admitted by the respondent.Such a plea which is based on unadmitted facts cannot be advanced on the basis of Section 3 of Limitation Act. Section 3 of Limitation Act does not contemplate admission and adjudication of facts at any stage in order to determine the plea of limitation. In any case provisions in law are made for advancement of justice and it has to be applied with that objective.Having filed the suit in 1990 which was dismissed for non-prosecution, petition for probate having been filed in the year 1996, both these proceedings were tried together, no such plea having been taken by the appellant regarding limitation, it was sheerly to delay the grant of probate.Therefore, the application of the petitioner was an abuse of the process fo law and has been rightly dismissed by the learned Single Judge.

There is no merit in this appeal.

Dismissed.