Section 10 of the CPC does not apply when the issues in probate do not overlap with rights of title determined in prior proceedings.

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

1. Notice to respondents is dispensed with in view of the proposed order to be passed.

2. The petitioners are before this Court seeking for the following reliefs:

a. Issue writ in the nature of certiorari or any other appropriate writ, order or direction and quash the order dated 12.11.2024 passed by the X Addl. District Judge, Belagavi, on I.A.No.16 filed in O.S.No.6/2019, produced at Annexure-G; and b. Grant such other reliefs as deemed fit in the circumstances of the case and in the interest of justice and equity.

3. The petitioner is aggrieved by the dismissal of the application filed under Section 10 of CPC seeking for stay of the suit in O.S.No.6/2019 which had been filed for grant of probate of the Will of one late Ningappa by Mr.Prakash Mallappa Kore.

4. The submission of Sri.Akshay Katti, learned counsel for the petitioners is that the testator Ningappa Shiddalingappa Kore had filed a suit in O.S.No.596/2011 seeking for declaration and injunction against the father of the petitioner herein namely Shrishail Dundappa Navi wherein the issues raised where as regards whether the plaintiff had proved that the defendants by playing fraud and misrepresentation on the plaintiff got executed a registered sale deed on 10.2.2021; whether the defendants prove that the defendants have purchased property for valuable consideration and whether the plaintiff prove that sale deed dated 10.2.2011 is illegal null and void and not binding on the plaintiffs.

5. The said three issues were held in favour of Shrishail Dundappa Navi inasmuch as the sale deed was confirmed to be bonafide and valid and the allegations regarding the sale deed were negatived.

6. An appeal having been filed in RA No.362/2015 also came to be dismissed. Subsequently, RSA No.100002/2022 has been filed which is pending consideration before this Court. As such, he submits that the very property which subject matter of the Will being subject matter of the aforesaid RSA, the proceedings in the suit in O.S.No.6/2019 seeking for probate of the Will of Ningappa Shiddalingappa Kore is required to be stayed.

7. Section 10 of the CPC reads as:

“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.”

8. Having heard the learned counsel for the petitioners, and having perused the papers I am of the considered opinion that Section 10 of the Code of Civil Procedure would not apply in these circumstances.

9. What is required for Section 10 to apply is that the lis in the second suit must be in issue in a prior instituted suit. The probate proceedings have been initiated for grant of probate whereas the lis in O.S.No.596/2011 out of which the RSA No.100002/2022 is now pending is as regards the title of the property. The grant of probate simpliciter will not confer any title on the plaintiff in the said proceedings. It only enables the plaintiff therein treated as a legatee of Ningappa Shiddalingappa Kore in furtherance of which necessary steps would have to be taken. Such being the case, the question of staying the proceeding for grant of probate is not something which arises out of the earlier suit filed in O.S.No.596/2011.

10. The right of the parties as regards the property will always be subject to