SURYAMANI SARANGI Vs. PRAVAKAR ALIAS PRAVA SANKAR SARANGI

JUDGEMENT

(1.) THIS writ application is directed against the order dated 25.3.2006 passed by the learned Additional District Judge, (First Track Court), Sambalpur in R.F.A. No. 1/29/1 of 2002 -03 -04 rejecting an application to stay further proceeding of the aforesaid appeal till disposal of T.S.No. 82/20 of 2002 -04 pending before the learned Civil Judge (Senior Division), Sambalpur.

(2.) THE case of the petitioner is that one Narayan Sarangi who was the common ancestor had four children namely, Padmanav, Kapila, Labanya and Baidyanath. Padmanav died issueless leaving behind his wife Jankia and Baidyanath also had no issue. Kapila had six children out of whom Pravakar claims to be the adopted son of Baidyanath. Pravakar is the plaintiff in T.S.No. 111 of 1991 out of which an appeal is pending before the learned Additional District Judge and he is also the plaintiff in T.S.No. 82/20 of 2002 -04. In T.S.No. 111 of 1991 admittedly Tilotama, Bijaya, Pankajini and Jayashree the other children of Kapila had not been impleaded as parties. In T.S.No. 111 of 1991 the case of the plaintiff -opposite party No. 1 is that he is the second son of late Kapila and was adopted by Baidyanath on 8.4.1938. His further case is that 'A' schedule property belonged to Baidyanath who died on 19.1.1986. The said Baidyanath had sold his property under a registered sale deed dated 17.12.1990 in favour of the present petitioner without any legal necessity and without receipt of consideration and as such the said sale deed was sought to be declared as invalid and inoperative in law. The defendants in T.S.No. 111 of 1991 filed a joint written statement denying the adoption and it was the case of the defendants therein that the 'A' schedule property had been purchased by Baidyanath in the name of his wife Susila out of his own income and, therefore the sale deed was not an invalid one. The learned Civil Judge decreed the suit in part and held that the sale deed executed in favour of the present petitioner by Baidyanath is invalid to the extent of 50% share of plaintiff -opposite party No. 1. The said decree has been challenged in appeal out of which this writ application arises. The plaintiff -opposite party No. 1 has filed T.S.No. 82/20 of 2002 -04 before the learned Civil Judge, (Senior Division), Sambalpur which has been transferred to the Court of the Ad hoc Additional District Judge, Sambalpur impleading his brothers and sisters for a declaration of his right, title and interest over Ac. 0.55 decimals of land under M.S. Plot No. 836, M.S. Khata No. 472. In the said suit, plaintiff -opposite party No. 1 has pleaded that he is the adopted son of Baidyanath. The brothers and sisters who were not parties in the earlier suit, filed a joint written statement in T.S.No. 82/20 of 2002 -2004 denying the claim of adoption and they also acknowledged the sale deed dated 17.12.1990 executed by Baidyanath in favour of the present petitioner. In view of such a stand taken by the brothers and sisters of plaintiff -opposite party No. 1 in the subsequent suit, an application was filed by the petitioner under Section 151 CPC before the learned Additional District Judge (F.T.) in the aforesaid appeal to stay further proceeding in the appeal on the ground that if the adoption is declared to be invalid in T.S.No. 82/20 of 2002 -04, the judgment delivered in T.S.No. 111 of 1991 which is the subject matter of the appeal becomes inoperative and there may be two contradictory findings with regard to adoption. The said petition was rejected by the lower appellate Court on the ground that Section 151 of the CPC has no application and the Court cannot exercise the inherent power under Section 151 CPC when there is specific provision in CPC under Section 10 for stay of suit, which has no application in the present case.

(3.) THERE is no dispute that in the earlier suit, the decree was passed in part holding execution of the sale deed in favour of the petitioner as invalid to the extent of 50% share of opposite party No. 1 on the ground that opposite party No. 1 is the adopted son of Baidyanath. The question as to whether opposite party No. 1 is the adopted son of Baidyanath or not is also one of the issues in the subsequent suit and, therefore, there is possibility of two contradictory findings relating to the claim of adoption by opposite party No. 1. Section 10 of CPC admittedly has no application since the prayer in the petition is to stay further proceeding of the appeal arising out of an earlier suit. The learned Counsel for the opposite party No. 1 relied upon a decision of the Apex Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seph Hiralal reported in : AIR1962SC527 and submitted that the provisions of Section 10 CPC are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the Code for dealing with the contingencies of two such suits being instituted exercise of inherent power under Section 151 is not justified. Two other decisions of the Apex Court taking similar view in the case of Arjun Singh v. Mohindra Kumar and Ors. reported in : [1964]5SCR946 and Ram Chand and sons Sugar Mills Private Ltd., Barahanki (U.P.) v. Kanhayalal Bhargava and Ors. reported in : [1966]3SCR856 were cited by the learned Counsel for the opposite party No. 1. The learned Counsel for the petitioner also relied upon a decision of this Court in the case of Bansidhar Nayak and Ors. v. Laxmiprasad Patnaik reported in Vol. 32 (1966) CLT 563 wherein it is held that where Section 10 of CPC has no application, Section 151 of CPC can be applied. Law is well settled that when there is specific provision in the statute, the Court should not exercise inherent power vested in it. Section 10 CPC speaks of stay of subsequent suit and in the present case Section 10 CPC has no application since the petitioner prays for stay of further proceeding in the appeal arising out of an earlier suit. If Section 10 of CPC has no application, the question is as to whether Section 151 of CPC can be invoked. Even if the settled position of law is that the inherent power cannot be exercised when there is specific provision in the Code of Civil Procedure, when such specific provision in the Code of Civil Procedure, when such specific provision has no application to the facts of the case, in my view, the inherent power can be exercised in order to avoid contradictory findings in two different suits involving same issue. In the present case in the earlier suit the Court has passed a decree holding that the opposite party No. 1 is the adopted son of Baidyanath and again the same question as to whether opposite party No. 1 is the adopted son of Baidyanath or not is also to be decided in the subsequent suit. In the event, the trial Court in the subsequent suit finds that opposite party No. 1 is not the adopted son of Baidyanath, the question will arise as to whether such a finding shall be binding on the lower appellate Court while deciding the appeal filed against the judgment and decree passed in the earlier suit in which the opposite party No. 1 has been held to be the adopted son of Baidyanath. In order to avoid such complication, it will be appropriate to stay further proceeding in the appeal till disposal of the subsequent suit i.e. T.S.No. 82/20 of 2002 -04 in exercise of inherent power under the Code of Civil Procedure.