An application under Sec. 22 of the Hindu Succession Act does not qualify as a suit under Section 10 of the Code of Civil Procedure and cannot be stayed under that provision.

Chandramauli Kr.Prasad, J.

1. Respondent No.1-petitioner, aggrieved by the order dated 13.3.2006 passed by the Subordinate Judge 1st, Supaul in Miscellaneous Case No. 2 of 2005 refusing to stay the said case till the disposal of Title Suit No. 19 of 2002 pending in the Court of Subordinate Judge 4th, Supaul, has preferred this application.

2. Short facts giving rise to the present application are that Brajesh Kumar Singh, opposite party no. 1 herein, filed application under Sec. 22 of the Hindu Succession Act, inter alia, praying for a direction to Raj Kumar Chauhan, the petitioner herein, for executing sale deed in respect of the property mentioned in the application on receipt of the consideration money. Said Brajesh Kumar Singh earlier to that had filed Title Suit No. 19 of 2002, impleading the petitioner herein as defendant no. 18 inter alia praying for partition of his half share in Schedule I and 1/4th share in Schedule II property. Relief added by way of amendment is to direct defendant no. 18 of the suit to execute the sale deed after receipt of the consideration money in respect of Schedule IV property, which is the subject matter of the Miscellaneous case.

3. Petitioner filed application for stay of the Miscellaneous case under Section 10 of the Code of Civil Procedure, hereinafter referred to as the Code. By reason of the impugned order, said prayer has been rejected holding that Miscellaneous application under Sec. 22 of the Hindu Succession Act does not come within the expression "suit" as mentioned in Section 10 of the Code and as such it cannot be stayed under that provision.

4. In view of aforesaid, following questions fall for determination:

(i) Whether an application filed under Sec. 22 of the Hindu Succession Act is a suit within the meaning of Sec. 10 of the Code of Civil Procedure?

(ii) Whether a proceeding other than suit, namely, a proceeding under Sec. 22 of the Hindu Succession Act can be stayed by a court in exercise of the power under Sec. 10 of the Code of Civil Procedure?

5. Mr. Dwivedi, appearing on behalf of the petitioner submits that an application filed under Sec. 22 of the Hindu Succession Act is for adjudication of right and hence comes within the expression "suit" within the meaning of Sec. 10 of the Code.

6. Mr. Amrit Abhijat, appearing on behalf of opposite party no. 1, however, submits that an application filed under Section 22 of the Hindu Succession Act, hereinafter referred to as the Act, is not a suit within the meaning of Sec. 10 of the Code.

7. Rival submissions necessitate examination of the scheme of the Code as also Civil Court Rules framed by the High Court.

8. Sec. 10 of the Code reads as follows:

"Sec. 10. Stay of suit"No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court."

9. From its plain reading, it is evident that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit. The word suit has been used in this Section as also at several places in the Code, but the same has not been defined. Order IV of the Code deals with the institution of the suit and Rule I thereof, provides for its institution by presentation of plaint. Order IV Rule (2) of the Code requires the plaint to comply the provisions of Order VI and VII of the Code as far as applicable.

10. Sec. 22 of the Hindu Succession Act, which is relevant for the purpose, reads as follows:

"Section 22. Preferential right to acquire property in