Location: OHC, Cuttack

Date: 06-Nov-2025 14:06:02

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.1002 of 2025

(In the matter of an application under Article 227 of the Constitution of

India)

Smt. Swarnarekha Patnaik …. Petitioner

-versus-

Jagadish Behera and Others … Opposite Parties

Advocate(s) appeared in this case:-

For Petitioner : Mr. D. Nanda, Advocate

For Opp. Parties : Mr. A.P. Bose, counsel for O.P.1 & 2

Mr. D. Mohapatra, Sr. Counsel along with Mr. C. Panda, counsel for

O.P.10.

Ms. A. Tripathy, counsel for O.P.

No.3 & 5 – 7.

Mr. S.K. Rout, ASC for O.P. No.9

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

31^st October, 2025

B.P. Routray, J.

1. Heard Mr. D. Nanda, learned counsel for the Petitioner, Mr. A.P. Bose, learned counsel for Opposite Parties 1 and 2, Mr. D. Mohapatra, learned senior counsel along with Mr. C. Panda, learned counsel for Bhubaneswar Development Authority (O.P. No.10), Ms.

Location: OHC, Cuttack Date: 06-Nov-2025 14:06:02 A. Tripathy, learned counsel for Opposite Parties 3 and 5 to 7 and Mr. S.K. Rout, learned ASC for State – Opposite Party No.9.

2. Present CMP is directed against order dated 17^th March 2025 of learned 2^nd Additional Senior Civil Judge, Bhubaneswar passed in C.S. No.1567 of 2016, wherein the further proceeding of the suit has been stayed upon pendency of the probate proceeding in Probate Case No.27 of 2017, now pending before the same court.

3. Present Petitioner is the Plaintiff and it is contended on her behalf that since the suit filed by her is not a partition suit exclusively, the same is not required to be stayed for pending probate proceeding. It is submitted by Mr. Nanda that the prayer for partition of the suit property in favour of the Plaintiff is dependent on the fact of cancellation of relinquishment deed allegedly executed by her and therefore, this is not a fit case to stay proceeding of the suit for pending probate proceeding.

4. Conversely, it is submitted by Mr. Bose, learned counsel for Defendants 1 and 2 that reading of the reliefs sought by the Plaintiff would indicate that present suit is for partition substantially and further, the other daughters who are Defendants 3 to 7 have also Location: OHC, Cuttack Date: 06-Nov-2025 14:06:02 filed cross suit praying for partition in respect of the suit schedule property. Therefore it cannot be said that the suit is not for partition and as such the order of the trial court directing stay of further proceeding cannot be termed as illegal.

5. Law is well settled that when a probate proceeding in respect of the same property involved in a partition suit is pending decision, the proceeding in the partition suit should wait the final decision of the probate proceeding.

6. In Ashok Kumar Ray v. Smt. Reba Biswas and Others, AIR 2017 Orissa 48, this court relying on the case of Nirmala Devi v. Arun Kumar Gupta and Others, (2005) 12 SCC 505 and Balbir Singh Wasu v. Lakhbir Singh and Others, (2005) 12 SCC 503 have held as follows:-

“9. Reverting to the facts of the case and keeping in view the aforesaid principles, this Court finds that the suit schedule property is the subject-matter of dispute in the partition suit as well as probate proceeding. This jural relationship amongst the parties inter se is finally decided in the preliminary decree. The decision in the probate proceeding on the question of proof of „Will‟ will have a direct impact on the suit. The decision in the partition suit would also operate as res judicata in the probate proceeding. In such contingency, Location: OHC, Cuttack Date: 06-Nov-2025 14:06:02 when both the proceedings are pending, the suit for partition shall remain stayed till disposal of probate proceeding.”

Further in Rajlaxmi Singh Deo v. Shivendra Narayan Bhanja Deo and Another, 124 (2017) CLT 1071, the same view has been reiterated.

7. In the case at hand since there is a dispute raised regarding nature of the suit, it is important to reproduce the prayer of the Plaintiff made in the plaint. The same reads as follows:

“20. Relief sought