SURESH CHANDRA CHOUDHURI Vs. SAKUNTALA CHOWDHURY

JUDGEMENT

(1.) In the instant revision under Article 227 of the Constitution of India, order dated 16th August, 2016 passed by the learned Civil Judge (Senior Division), Malda is impugned at the instance of the plaintiff (hereafter referred to as petitioner) of Partition Suit No.240 of 1994.

(2.) The petitioner as plaintiff filed a suit for partition against the opposite parties which was registered as Partition Suit No.240 of 1994 in the Court of the learned Civil Judge (Senior Division), Malda. Preliminary decree was passed in the said suit on 14th July 2000. The judgment passed in the aforesaid partition suit and decree in preliminary form was challenged by the opposite parties by preferring an appeal being Title Appeal No.38 of 2000 which was eventually dismissed on contest on 20th January, 2013. The opposite parties preferred a second appeal in this court which after admission was registered as SA No.119 of 2006. The said appeal was also dismissed by this court on 29th January, 2006 and the judgment and decree in preliminary form passed in Partition Suit No.240 of 1994 was affirmed up to the Supreme Court of India. The said suit is now pending for recording decree in final form.

(3.) In the mean time, the original defendant No.1 expired and her name was expunged from the array of the defendants. That on 1st October, 2015 an application under Section 10 read with Section 151 of the Code of Civil Procedure was filed on behalf of the defendants/opposite parties stating, inter alia, that the original defendant No.1 executed a will during her lifetime and bequeathed her 1/9th share in the suit property in favour of her two grand-sons, namely, Suradeb Chowdhury and Subhodeb Chowdhury and defendant No.4. The executor of the said will made an application for granting of probate of the said will executed by original defendant No.1, since deceased. The probate proceeding, being contentious, was registered as OC No.5 of 2014. The petitioner has been contesting the said probate case by filing written statement. Accordingly the opposite parties prayed for an order of stay of further proceeding of Partition Suit No.240 of 1994 till the disposal of OC No.5 of 2014.