IMPORTANT POINT
When both proceedings are pending, suit for partition shall remain stayed till disposal of probate proceeding.

Dr. A.K. Rath, J.—The instant petition is to laciniate the orders dated 15.1.2015 and 21.3.2015 passed by the learned Civil Judge (Sr.Division), Puri in C.S.No.464 of 2008. By order dated 15.1.2015, the learned trial court vacated the order of stay whereas, by order dated 21.3.2015, it held that partition suit shall continue till the stage of carrying out of a preliminary decree.

2. The opposite parties 1 to 5 as plaintiffs instituted C.S.No.464 of 2008 for partition of the properties left by common ancestor Atul Krishna Roy in the court of the learned Civil Judge (Sr.Division), Puri impleading the petitioner as well as proforma opposite parties 6 and 7 as defendants. Pursuant to issuance of summons, defendant no.1-petitioner entered appearance and filed a written statement. During pendency of the suit, defendant no.1 filed an application under Section 276 of the Indian Succession Act before the learned District Judge, Puri for grant of Pobate of Will said to have been executed by late Atul Krishna Roy bequeathing the properties in his favour, which is registered as Test Case No.7 of 2012. Thereafter defendant no.1 filed an application to stay the further proceeding of the suit till disposal of Test Case No.7 of 2012. The plaintiffs filed objection to the same. The said application having been allowed, the plaintiffs approached this Court in W.P.(C) No.22464 of 2013. A Bench of this Court disposed of the said writ petition on 12.12.2014 directing the learned District Judge, Puri to dispose of Test Case No.7 of 2012 within a period of six months and to proceed with the suit for partition in accordance with law. On 15.1.2015, the learned trial court vacated the order of stay. On 21.3.2015, the learned trial court came to hold that fate of the suit depends on the probate case, since position of the probate case is not known. There is no reason to grant stay. It further held that the suit shall continue till the stage of carrying out of a preliminary decree.

3. Heard Mr.Ashok Mohanty, learned Sr.Advocate for the petitioner and Ms.Pratyusha Naidu, learned Advocate for the opposite parties 1, 2, 4 and 5.

4. Mr.Mohanty, learned Sr.Advocate for the petitioner submits that the properties involved in testamentary case and the suit for partition is same. The fate of the suit depends upon the Pobate of Will. In view of the same, further proceeding of the suit may be stayed till disposal of the probate proceedings.

5. Per contra, Ms.Naidu, learned Advocate for the opposite parties 1, 2, 4 and 5 submits that this Court in W.P.(C) No.22464 of 2013 directed the learned District Judge, Puri to dispose of Test Case No.7 of 2012 within a period of six months and to proceed with the suit for partition in accordance with law. In view of the same, the suit for partition may continue till passing of final decree. She relies on a decision of the apex Court in the case of Nirmala Devi Vrs. Arun Kumar Gupta and others (2005) 12 SCC 505.

6. The sole question that hinges as to whether the suit for partition shall remain stayed till disposal of the probate proceeding.

7. Before proceeding further, it is apt to refer to the decision of this Court in the case of Jagojoti Bose and another v. Baruruchi Bose and others, AIR 1970 Orisa 28. In Jagojoti Bose (supra), the disputed property belongs to one Haricharan Bose. He had three sons. On 10.10.1946, he executed a Will in respect of the disputed property in favour of defendant nos.4 and 5. Thus he divested the plaintiff-another son from inheritance under the Will. On 30.10.1958, the plaintiff instituted a suit for partition claiming 1/3rd interest. Defendants 4 and 5 filed written statement claiming the entire property to themselves on the strength of the Will. On 12.9.1960, defendants 4 and 5 filed an application for Probate of Will in the court of the learned District Judge, Cuttack. On 28.6.1961, a preliminary decree for partition was passed in favour of the plaintiff. On 28.11.1962, Probate of Will