Viswanathan and 6 others vs David and 6 others

K.P. Sivasubramaniam, J.—This Revision Petition is directed against the order of the learned Subordinate Judge Vellore in I.A. No. 208 of

1996 in O.S. No. 508/88 dated 3.3.1998. The order impugned arises out of the application filed by the respondent herein tinder Sections 10 and

115 C.P.C. to stay all further proceedings in the said suit.

The present suit has been filed by the plaintiffs/petitioners for directing the division of the plaint ''A'' schedule property into three equal shares

and allotting one such share to the plaintiffs by appointing a Commissioner, if necessary, and for declaration of the title over the property to the

plaintiffs for ''B'' schedule property and for directing the defendant to deliver possession of the ''B'' schedule property.

It is not necessary to extract the mutual pleadings and it is sufficient to state that the rights of the parties are dependent on a Will said to have

been executed by one Ebanazer, predecessor-in-title of the property in respect of which the disputes have arisen. It is stated that during the

pendency of the said suit, the plaintiffs have filed a Probate proceeding before the District Judge, Kolar and also have obtained Probate order

dated 1.3.1995. It is further stated that subsequently, the respondents have taken steps before the District Court, Kolar for setting aside the

Probate order and the said proceedings are now pending before the said forum. The present application has been filed at the instance of the

Respondents/defendants to stay the suit pending disposal of the proceedings before the District Judge, Kolar. The application has been filed both

Sections 10 and 115 of C.P.C. In support of the said application, the petitioner (respondent herein) has submitted several facts which according to

him amounts to abuse of process of law and fraud played on the Court. According to him, the alleged Will had been filed in the present suit itself.

But in 1990 the Will was taken back by the petitioners with a view to fraudulently obtain a Probate. Subsequently, after 5 years, the petitioners

would appear to have filed the proceedings before the District Court, Kolar and got an order of probating the Will, which has been obtained

behind the back of the defendants on 1.3.1995. In the counter objecting to the application for stay, the petitioners herein would state that the

Probate order dated 1.3.1995 issued by the District Judge, Kolar was not binding on this Honourable Court (Trial Court) and therefore the

request for stay of the suit proceedings was not maintainable. According to him, the present application was filed only to prolong the proceedings

and hence this application was not maintainable.

On consideration of the mutual submissions the learned Subordinate Judge came to the conclusion that it was in the interest of justice that the

proceedings of the suit was stayed pending the disposal of the Probate proceedings before the District Judge, Kolar. The present petition has been

filed by the petitioner herein as against the stay order.

Several judgments were cited on the side of the petitioner to show that Section 10 of C.P.C, will not apply for the reason that the present suit

was prior in point of time and the Probate proceedings before the District Judge, Kolar was subsequent, and therefore Section 10 of C.P.C. will

not apply. It is also contended that Probate proceedings cannot be treated as a suit within the meaning of Section 10 of C.P.C. and therefore the

plaintiff was not entitled to obtain stay of the former suit.

As stated, earlier the learned subordinate Judge, has exercised his inherent power u/s 151 of C.P.C. and not u/s 10 of C.P.C. and therefore it is

not necessary to consider the issues arising out of the maintainability of this application u/s 10 of C.P.C.

The learned counsel for the respondent has relied on a judgment reported in Smt. Rukmani Devi and Others Vs. Narendra Lal Gupta, He relied

upon this judgment to show that the grant of succession certificate under Succession Act in the Probate proceedings would preclude them from

contesting the validity of the Will in other proceedings. Reliance has also been placed on a judgment of the Full Bench of Travancore-Cochin Court

reported in Thresia v. Lonan Mathew ( 1956 Tra-Co 186) in which also it is stated that the Probate granted to the last Will by the Competent

Court will be binding and that it will not be open to any other Court to question the Probate proceedings.

Therefore having regard to the fact that the Probate to be granted by the Competent Court will bind all other proceedings before any other

Court, the contention of the learned counsel for the respondent is that the verdict, which is to be passed by the District Judge, Kolar is bound to

prejudice his rights. Therefore, in the said circumstances, the learned Subordinate Judge was perfectly justified in exercising his inherent power u/s

151 of C.P.C. In this context, it is sufficient to refer to a judgment of a Division Bench of this Court reported in Krishnan and another v.

Krishnamurthy (1981 T.L.NJ. 358 = 94 L.W. 703) In that case, this Court came to the conclusion that Section 10 was not applicable to the

proceedings in question, but if the Court was satisfied, that it is necessary to meet the ends of justice or to prevent the abuse of the process of the

law, the jurisdiction of the Civil Court u/s 151 of C.P.C. was always applicable. Therefore, having regard to the competence of the lower Court to

apply Section 151 of C.P.C. I do not find any error in the inherent power exercised by the Court below. With the result, there is no merit in the

Revision and the same is dismissed. No costs.