IMPORTANT POINT
Return of plaint –Adjudication of petition, which is likely to affect trial of suit or to take away jurisdiction of Court to try suit, cannot be entertained when further proceeding of suit is stayed.

JUDGMENT

Krushna Ram Mohapatra, J.—This matter is taken up by virtual/physical mode.

2. Order dated 12th July, 2022 (Annexure-5) passed by learned Senior Civil Judge, Angul in CS No.24 of 2004 is under challenge in this CMP, whereby an application filed by the Petitioner under Order VII Rule 10 CPC has been rejected.

3. As would reveal from the averments made in the CMP, Opposite Party Nos.1 to 3 filed an application under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act of 1925’) before learned District Judge, Dhenkanal for grant of probate of Will, which was registered as Test Case No.14/20 of 2003. Subsequently, after filing of the written statement therein, the probate proceeding became contentious and was transferred to the Court of learned Senior Civil Judge, Angul and registered as CS No.24 of 2004. The Petitioner has been arrayed as Opposite Party No.2 in the said proceeding. Needless to mention here that the present Petitioner along with predecessor of Opposite Party Nos.6 to 9, namely, late Sudhir Kumar Sahu have already filed their respective written statements opposing the probate.

4. Partition Suit in CS No.99 of 2002 is also pending between the parties to the probate proceeding before learned Senior Civil Judge, Angul. After death of the Plaintiff in the suit for partition, the Petitioner filed an application to be transposed as Plaintiff in the said suit. He also filed an application to club up both the suits, i.e., CS No.24 of 2004 and CS No.99 of 2002. Both the applications were dismissed by learned Senior Civil Judge, Angul, vide order dated 29th April, 2022. Assailing the same, the Petitioner filed CMP No.526 of 2022 and by order dated 21st June, 2022, this Court directed stay of further proceedings of CS No.24 of 2004. When the interim order was continuing, the Petitioner filed an application under Order VII Rule 10 CPC with a prayer to return the plaint to the Opposite Party Nos.1 to 3 (Petitioners therein) to be filed before the competent Court, i.e., learned District Judge, Angul. Learned Senior Civil Judge, without taking into consideration that interim order staying further proceeding of C.S. No.24 of 2004 was in vogue, took up and rejected the petition under Order VII Rule 10 CPC on the same day of filing, i.e., 12th July, 2022 (Annexure-5).

5. Learned counsel for the Petitioner, Mr. Behera, assails the order under Annexure-5 on two counts. Firstly, learned Senior Civil Judge, Angul could not have taken up the petition under Order VII Rule 10 CPC for adjudication when an interim order of stay of further proceeding of CS No.24 of 2004 was in vogue. Secondly, learned Senior Civil Judge, Angul lacks jurisdiction to entertain a contentious probate proceeding filed (CS No.24 of 2004) under Section 276 of the Act of 1925. Mr. Behera, learned counsel for the Petitioner submitted that the direction in the interim order dated 21st June, 2022 was not addressed to the parties to the proceeding, but to the Court to arrest further proceeding of CS No.24 of 2004. Thus, even if an application under Order VII Rule 10 CPC was moved by the present Petitioner, it was the duty of the Court to restrain itself from passing any judicial order thereon. It should have waited till either vacation of the interim order or disposal of CMP to entertain the application. In support of his case, Mr. Behera, learned counsel relied upon the case of Mulraj Vs. Murti Raghonathji Maharaj; reported in AIR 1967 SC 1386, wherein at para-8, it is held as under:—

“8. We are of opinion that the view taken in Bessesswari Chowdhurany case [(1896-97) 1 CWN 226] is the correct one. An order of stay in an execution matter is in our opinion in the nature of a prohibitory order and is addressed to the court that is carrying out execution. It is not of the same nature as an order allowing an appeal and quashing execution proceedings. That kind of order takes effect immediately it is passed, for such an order takes aw