BAJRANG SHARMA Vs. RAM KRISHNA KUNDU

JUDGEMENT

(1.) The defendant of Money Suit No. 9 of 1992, being the petitioner in this application under section 115 of the Code Civil Procedure has assailed the order dated 12.8.96 passed by the learned Munsif, 1st Court, Bankura in connection with the said money suit, whereby and whereunder the application under section 151 of the Code of Civil Procedure filed by the defendant praying for stay of the instant proceeding till the will is probated in the appropriate forum, was rejected only on the ground that two sons of the plaintiff though claimed to be the legal representatives to continue the suit on the basis of the will in view of their status as executors, but they had also the right as legal heirs on the property of the suit on pro rata basis.

(2.) The petitioner herein has submitted that since all the legal heirs are not parties to the proceeding, and since only the executors under the will have been impleaded as parties to continue the suit, the left out legal heirs may cause problem until and unless the will is probated confirming the right of the executors, and in that view of the matter, the suit was required to be stayed till the concerned will was probated in the appropriate proceedings.

(3.) Learned Advocate for the opposite parties herein, that is the substituted heirs on the basis of such will as plaintiffs, has contended, inter alia, that in view of the terms of the Indian Succession Act, they are entitled to continue the suit irrespective of grant of probate in appropriate proceedings relating to the will on the strength and basis of which they acquired the right to continue the suit as legal representatives and there was no necessity of stay of the proceedings by imposing any rider as sought for.