ARVIND KUMAR Vs. UMAPATI DEVI

JUDGEMENT

(1.) This civil revision is directed against the order by which the court below has refused to stay further proceeding in Title Partition Suit No. 57/95. Relevant facts are as follows.

(2.) Opposite party No. 1 has filed Title Partition Suit No. 57/95 seeking partition of her share in the properties left behind by one Ram Sewak Rai @ Bhola Rai. The petitioner claims the property on the basis of Will dated 10-11-94 which is said to have been executed by the said Ram Sewak @ Rai Bhola Rai in his favour. He filed a petition for being added as a party, having come to learn about the suit, on 5-2-96 which was allowed. It may be stated that his mother had been impleaded as sole defendant in the suit. After being added as defendant No. 2, the petitioner filed written statement stating about the aforesaid Will. He also stated that he has filed a Letters of Administration case (L.A. Case No. 111/95) seeking grant of letters of administration with respect to the said Will, which is pending in the court of District Judge, Patna. The plaintiff of the present suit has already appeared and filed objection in that case. An application was filed for stay of the present suit, i.e. TPS No. 57/95 under Section 10 read with Section 151, Code of Civil Procedure. The petition having been rejected by the impugned order he has come in civil revision to this Court.

(3.) It is admitted position that TPS No. 57/95 was filed earlier in point of time on 4-2-95. The Letters of Administration case was filed later on 7-9-95. Section 10 of the Civil Procedure Code contemplates trial of any suit if the matter in issue in that suit is also directly and substantially in issue in a 'previously instituted suit'. The partition suit having been instituted earlier, Section 10 in terms cannot be said to be applicable. In other words, under the said provision the trial of the said suit cannot be stayed till disposal of the L.A. case. The court has nevertheless the power to stay the suit under Section 151 of the Code.