In a probate proceeding, the question of title of the parties cannot be decided, and the court cannot stay the proceedings of a suit based on the pendency of a probate case.

Binod Kumar Roy, J.

1. This is a plaintiffs application whereby she challenges an order passed under Sec. 10 of the Code of Civil Procedure (hereinafter to be referred to as the Code), on an application filed by the defendants-opposite, staying further proceedings of the suit in question on the ground of pendency of a probate case.

2. Notices were issued to the opposite parties, pursuant to an order dated 25-9-1989 to show cause as to why an appropriate final order be not passed in this case at the stage of admission itself. From the office notes, it is clear that notices have been validly served on them under Order V Rule 19(A)-2 of the Code. No one, however, appears on their behalf.

3. Heard Mr. Alok Kumar Sinha, learned Counsel for the petitioner, who submits that probate case No. 5 of 1988 having been filed about three years after the institution of the instant suit in which question of title of the parties cannot be gone into decided, the court below, has exceeded its jurisdiction in staying further proceedings of the instant suit till the decision of the, said probate case on the solitary ground that it would be just and proper to do so. He further submits that the instant suit being an old one and the findings recorded on the question of title, if any, of the parties decided in the probate case not being binding on the petitioner, the court below has illegally invoked its inherent jurisdiction by stating that it would be just and proper to stay proceedings of the instant suit till the disposal of the probate case.

4. The court below, in my view, has completely misconceived the true nature of Sec. 10 of the Code as also the scope of the instant suit. It is also a settled law that in a probate proceeding, the question of title of the parties cannot be gone into. In the aforementioned view of the matter, the court below could not have been even justified in invoking its inherent jurisdiction also which has not been done. I am of the view that by staying further proceedings of the instant suit, in fact, injustice has been done to the petitioner and the court below has exceeded its jurisdiction in doing so.

5. In the result, the impugned order is set aside. This application is allowed but since no one has appeared to contest this civil revision application, there will be no will be no order as to cost.