Orissa High Court
Arabinda Dey vs Smt. Karuna Dey @ Saha And Others .... ... on 13 May, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.298 of 2025
Arabinda Dey .... Petitioner
Mr. D.P. Mohanty, Advocate
-Versus-
Smt. Karuna Dey @ Saha and others .... Opposite Parties
Mr. A.P. Bose, Advocate
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
Order 13.05.2025 No. 02. 1. Heard Mr. Mohanty, learned counsel for the petitioner and
Mr. Bose, learned counsel for opposite party Nos.1 and 2.
2. No notices are issued to opposite party Nos.3 to 6 as the same is not necessary, hence, dispensed with.
3. Instant petition is filed by the petitioner challenging the impugned order as at Annexure-5 dated 24th January, 2025 passed in CS No.8811 of 2014 by learned 2nd Additional Senior Civil Judge, Balasore, whereby, an application under Section 151 CPC to stay the further proceeding therein pressed into service by him in view of the pendency of Probate Misc. Case No.12 of 2024 subjudice in the court of learned District Judge, Balasore has been declined.
4. Mr. Mohanty, learned counsel for the petitioner submits that the probate proceeding is pending before the learned District Judge, Balasore and it has been admitted in the meantime and while claiming so, he produced a certified copy of the order dated 11th February, 2025 of the said court. It is further submitted that the suit Page 1 of 3 is for partition, whereas, the subject of the probate corresponds to property described in schedule Lot-3 of the suit, hence, therefore, learned court below should have stayed the further proceeding in CS No.8811 of 2014 in exercise of powers under Section 151 CPC, however, it is led to the passing of the impugned order i.e. Annexure-5, which is liable to be interfered with. In support of such contention for stay of suit, Mr. Mohanty, learned counsel for the petitioner relies on a decision of this Court in Ashok Kumar Ray Vrs. Smt. Reba Biswas AIR 2017 Orissa 48.
5. On the other hand, Mr. Bose, learned counsel for opposite party No.1 and 2 does not dispute the proposition of law as reiterated by this Court in Ashok Kumar Ray (supra) but submits that awaiting objection, if any, to be filed in the probate proceeding and thereafter, it is to be accordingly dealt with as per law with the proceeding converted to a suit, if the issue involved becomes contentious and therefore, merely for the pendency of such proceeding, the further proceeding in the suit should be stayed. Mr. Bose, learned counsel further submits that at the time of filing of the WS, nothing was revealed with regard to the Will in question, for which, the probate proceeding has been initiated in 2024 and hence, the impugned decision as per Annexure-5 is perfectively justified. It is claimed that the pleading was filed in the year 2014 and there has been no discussion about the Will and almost after a decade, the probate proceeding has been initiated. It is further submitted that in case, the Court is not inclined to stay the further proceeding, a direction is required to be issued for early disposal of the probate proceeding.
6. The settled legal position law stands reiterated by this Court in Ashok Kumar Ray (supra) referred to by Mr. Mohanty, learned counsel for the petitioner. There is no quarrel over the settled law Page 2 of 3 that decision in probate proceedings may have a directing bearing in a suit like the present one. Having regard to the facts pleaded on record and pendency of Probate Misc. Case No.12 of 2024 and regard being had to the submissions of learned counsel for the respective parties, the Court is of the view that the probate proceeding pending before the learned District Judge, Balasore is required to be taken up for early hearing and disposal as it shall have a direct bearing on the outcome of the suit in CS No.8811 of 2014(I) as the same would rather serve the purpose and meet the ends of justice.
7. Accordingly, it is directed.
8. In the result, the CMP stands disposed of with a direction to learned District Judge Balasore to immediately commence the hearing and disposal of Probate Misc. Case No.12 of 2024 at the earliest preferably within a period of six months or by the end of 31st December, 2025, whichever is earlier, whereafter, learned 2nd Additional Senior Civil Judge, Balasore shall to proceed deal with the suit in CS No.8811 of 2014(I) as expeditiously as possible. It is further directed that the parties involved in the probate proceeding shall not take unnecessary adjournments in order facilitate disposal of the probate proceeding as has been directed to be accomplished within the stipulated period. In the circumstances, however, there is no order as to costs.
9. Urgent certified copy of this order be issued as per rules.
(R.K. Pattanaik) Judge Signature Not Verified TUDU Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 14-May-2025 19:47:28 Page 3 of 3