IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.808 of 2026 An application filed under Article 227 of the Constitution of India. Pramath @ Pramod Kumar Biswas ..... Petitioner Mr. Dwarika Prasad Mohanty, Advocate -versus- Biren Biswas & Ors. ..... Opposite Parties Mr. Amit Prasad Bose, Advocate for Caveator- Opp. Party Nos.1 to 3 CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of Hearing : 06.07.2026 | Date of Judgment: 23.07.2026 _____________________________________________________ A.K. Mohapatra, J. : 1. The instant Civil Miscellaneous Petition has been filed by the above-named Petitioner under Article 227 of the Constitution of India, wherein the Petitioner has questioned the legality and validity of order dated 06.04.2026 passed in CS No.1973 of 2024 by the learned Civil Judge, Balasore, thereby rejecting an application under Section 10 of the CPC, with a prayer to stay the suit till disposal of the Probate Misc. Case No.5 of 2025, filed at the instance of the Defendant No.1 in the above-noted suit. 2. The factual matrix involved in the present CMP application, in a nutshell, is that, the Opposite Party Nos.1 to 3, as plaintiffs, filed CS No.1973 of 2024 before the learned Civil Judge (Senior Division) Balasore, for partition and permanent injunction against the defendants, including the present Petitioner. The plaintiffs in their plaint have pleaded that the suit Schedule-B land of the plaint is recorded in the name of late Surendra Nath Biswas, the father of both the plaintiffs and the defendants in the R.M.S. operation. After the death of their father, the parties to the suit inherited the suit schedule property jointly. Accordingly, the plaintiffs filed the suit for partition and permanent injunction. 3. After getting summons in the suit, the defendant No.1- Petitioner appeared and filed his written statement. In the written statement, the defendant No.1 specifically denied all the plaint averments. The defendant No.1-Petitioner has further stated that all of the legal heirs of late Surendra Nath Biswas have not been impleaded as parties to the suit. His father, late Surendra Nath Biswas, executed and registered a WILL on 23.02.2004 / 25.02.2004 in favor of the Petitioner-defendant No.1 in respect of Khata No.211 of Mouza-Balgopalpur, which is part of the suit properties for partition. After the death of his father, the defendant No.1 filed Probate Misc. Case No.5 of 2025 before the court of the learned District Judge, Balasore, for Probate of the said WILL, which is pending for adjudication at the moment. 4. The Probate Misc. Case, which has been filed on the basis of the registered WILL executed by late S. N. Biswas in favor of the defendant No.1, was filed in the year 2025 before the learned District Judge, Balasore, wherein summons have been issued to the present Opposite Party Nos.2 and 3, who have appeared in the case and filed their objection thereto. 5. While this was the position, the defendant No.1-Petitioner, after his appearance in CS No.1973 of 2024, filed an application under Section 10 of the CPC with a prayer for stay of the suit till disposal of the Probate Misc. Case No.5 of 2025 pending before the learned District Judge, Balasore. The Plaintiffs filed their objection to the petition filed by the defendant No.1 under Section 10 of the CPC. Consequently, the learned trial court took up the aforesaid application, under Section 10 of the CPC, for hearing and, after providing opportunity of hearing to both sides, vide his order dated 06.04.2026 dismissed the application of the defendant No.1-Petitioner and rejected his prayer for stay of further proceeding in CS No.1973 of 2024 awaiting the final verdict in the Probate Misc. Case. Being aggrieved by such order dated 06.04.2026 at Annexure-7 to the CMP application, the defendant No.1-Petitioner has approached this Court by filing the present CMP application. 6. Heard Shri D.P. Mohanty, learned counsel appearing for the Petitioner and Mr. Amit Prasad Bose, learned counsel appearing for the Caveator-Opposite Party Nos.1 to 3. Perused the CMP application, as well as the documents filed along with, and carefully examined the impugned order dated 06.04.2026 at Annexure-7 to the CMP application. 7. Mr. Mohanty, learned counsel appearing for the Petitioner, while assailing the impugned order dated 06.04.2026, contended before this Court that the trial court has committed a gross illegality by rejecting his prayer for stay of the suit during the pendency of the Probate Misc. Case. He further contended that the law in this regard is fairly well settled to the effect that when the properties included in the partition suit are also included in the Probate Misc. Case, or in the WILL executed by the recorded owner, the Probate proceeding is to be decided first before the suit is adjudicated finally and a consequential decree is drawn up. In the said context, it was also submitted that unless the proceeding in the civil suit is stayed, any decision in the suit would operate as res judicata so far as the Probate Misc. Case is concerned. Therefore, the learned counsel for the Petitioner reiterated the settled position of law that the partition suit should await the final verdict in the Probate Misc. Case, which has been initiated on the basis of a WILL and, accordingly, the suit for partition should remain stayed awaiting the final verdict in the Probate Misc. Case. 8. The learned counsel for the Petitioner further contended that the learned trial court lost sight of the aforesaid well settled position of law, as has been enunciated by the Hon’ble Supreme Court as well as by this Court in several judgments, and committed a gross illegality by rejecting the application of the defendant No.1-Petitioner under Section 10 of the CPC, which was filed with a prayer to stay the partition suit till finalization of the Probate Misc. Case. He further contended that since the Opposite Parties in the Probate Misc. Case have already filed their objection and the Probate Misc. Case is likely to be contested, the same is to be tried like any other suit and evidence is required from both sides. In such view of the matter, learned counsel for the Petitioner contended that it would be highly desirous that both the proceedings be taken up by one court and tried analogously, especially the witnesses in both the cases are likely to be common. He further contended that while deciding both the proceedings, the learned trial court shall have to deliver his verdict in the Probate Misc. Case first, and only thereafter can the suit for partition be disposed of. In the aforesaid context, learned counsel for the Petitioner referred to the judgment of this court in Ashok Kumar Ray Vs. Smt. Reba Biswas and others reported in AIR 2017 ORISSA 48. 9. Mr. Amit Prasad Bose, learned counsel appearing for the Caveator-Opposite Party Nos.1 to 3 did not dispute the proposition of law argued by Mr.Mohanty in support of his contention. However, he submitted that in the event the application of the Petitioner-Defendant No.1 is allowed, the same would amount to stay of further proceeding in the partition suit. It was stated that in such eventuality there is every likelihood that the disposal of the suit would be unnecessarily delayed, which would eventually cause prejudice to both sides. He further contended that though the Probate Misc. Case has been filed before the learned District Judge, Balasore, in the event of a contest, it would be heard and adjudicated by the learned Civil Judge (Senior Division), like any other suit. In such view of the matter, learned counsel for the Caveator-Opposite Party Nos.1 to 3 contended before this Court that in order to save time and prevent any unnecessary delay in disposal of the partition suit, it would be desirous that both the proceedings be transferred to one court and the same be directed to be adjudicated analogously. In the event such a direction is given, not only would it be well within the four corners of law, but also, no party is likely to be affected by such order and, the ends of justice would be aptly served. In such view of the matter, learned counsel for the Caveator-Opposite Party Nos.1 to 3, while justifying the order of the learned trial court in rejecting the Petitioner’s prayer for stay of the suit, would further argue that both the Probate Misc. Case as well as the partition suit be heard and tried analogously by one court and a direction be given to the learned trial court to conclude both the proceedings in a time- bound manner. In such eventuality, the Opposite Party would have no objection to such a direction being given by this Court to the learned trial court. 10. Having heard the learned counsels appearing for both sides, on a careful analysis of their submissions, further on a careful reading of the CMP application, and on a close scrutiny of the impugned order, this Court found that the sole point of contention in the present CMP application is the order dated 06.04.2026 passed by the learned trial court, wherein the defendant No.1’s application under Section 10 of the CPC, with a prayer for stay of the further proceeding in CS No.1973 of 2024, was rejected. Thus, the question of law that is required to be adjudicated in the present CMP application is whether the trial and hearing of the partition suit, wherein a part of the property is also involved in a WILL, should await the final decision in the Probate Misc. Case, filed by the Petitioner-defendant No.1? It is apt to mention here that both the learned counsel appearing for the Petitioner as well as the learned counsel for the Caveator-Opposite Party Nos.1 to 3 have referred and relied upon the judgment of a Coordinate Bench in Ashok Kumar Ray (supra) in support of their respective contentions. Page 9 of 15 11. In Ashok Kumar Ray’s case (supra), a Coordinate Bench of this court was required to adjudicate an issue as to whether the suit for partition shall remain stayed till disposal of the Probate proceeding. In the said reported judgment, the Opposite Party Nos.1 to 5 in the CMP, as plaintiffs, instituted CS No.464 of 2008 for partition of the properties left by common ancestor before the learned Civil Judge (Senior Division), Puri. The Petitioner in that case (the defendant No.1 in the civil suit) entered appearance and filed his written statement. Furthermore, during the pendency of the suit, the defendant No.1 filed an application under Section 276 of the ‘Indian Succession Act, 1925’ before the learned District Judge, Puri, for grant of Probate of WILL, said to have been executed by the common ancestor, bequeathing the properties in favor of the defendant No.1, which was registered as Test Case No.7 of 2012. Thereafter, the defendant No.1 filed an application to stay the further proceeding in CS No.464 of 2008 till disposal of the Test Case. Such application of the defendant No.1 having been allowed by the learned trial court, the plaintiffs approached this Court by filing 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 the Test Case within a period of six months and to proceed with the suit for partition in accordance with law. Thereafter, the learned trial court, on 15.01.2015, vacated the earlier order of stay therein on the ground that there is no reason to continue the stay order as the date of posting of the Probate case was not known and further held that the suit is to continue till the stage of carrying out of a preliminary decree. 12. Challenging the aforesaid conduct of the learned trial court, the defendant No.1 in the civil suit approached this Court by filing CMP No.619 of 2015. A Coordinate Bench of this Court, after hearing the counsels appearing for the respective parties and referring to the judgment of the Hon’ble Supreme Court in Niramala Devi Vs. Arun Kumar Gupta and others reported in (2005) 12 SCC 505 relied upon by the Opposite Parties, proceeded to dispose of the said CMP application and, finally, while quashing the impugned order dated 15.01.2015 and 21.03.2015, directed the learned trial court to stay further proceedings in CS No.464 of 2008 pending before the learned Civil Judge (Senior Division), Puri, till disposal of the Test Case No.7 of 2012 13. In Nirmala Devi (supra), the question that arose before the Hon’ble Supreme Court was whether the Probate proceeding could be clubbed with the suit. The Hon’ble Supreme Court, after considering the arguments advanced from both sides, held that in the Probate proceedings on the question of proof of the WILL will have a direct impact on the suit and, only on that short ground and without expressing any opinion on the merits, of the controversy between the parties, the Hon’ble Apex Court directed the learned District Judge to make it convenient to dispose of the Probate proceeding as well as suit. Such view of the Hon’ble Supreme Court directing the District Judge to make it convenient for disposal of the Probate proceeding as well as the suit has also been subsequently followed in Balbir Singh Wasu Vs. Lakhbir Singh and others reported in (2005) 12 SCC 503. 14. Reverting back to the facts of the present case, it is not disputed at bar that the suit Schedule-B land of the partition suit is also the subject matter in the pending Probate Misc. Case. It is also not disputed that the properties involved both in the Probate Misc. Case as well as in the partition suit belong to the common ancestor and that the legal heirs of the common ancestor are litigating among themselves with regard to their share in the ancestral property. Moreover, the suit in the present case bearing CS No.1973 of 2024, being in the nature of a partition suit, the parties are duty-bound to bring on record all the properties belonging to the common ancestor. 15. It is also undisputed that the final adjudication in the Probate Misc. Case would have a substantial bearing on the outcome of the partition suit as the suit Schedule-B property is likely to be affected by any final adjudication in the Probate Misc. Case. Once the partition suit is allowed to continue and a judgment and decree is delivered in the partition suit, the same would have a binding effect in the Probate Misc. Case and it would be difficult on the part of the trial court adjudicating the Probate Misc. Case to decide the right of the plaintiff independently on the basis of the claim made by the plaintiff, which should solely flow from the WILL executed by the ancestor in favor of such plaintiff. Thus, it is evident that in the event the partition suit is allowed to continue and a judgment and decree is delivered therein, the same would operate as res judicata so far the Probate Misc. Case is concerned and the adjudication in the Probate Misc. Case would become futile. The claim of the defendant No.1 in the Probate Misc. Case on the basis of the WILL requires adjudication, and such adjudication has to be independent and solely on the basis of the WILL executed by the common ancestor. True, it is that if the Probate Misc. Case is allowed, then the suit Schedule-B property is required to be amended/ modified and in the event the Probate Misc. Case is dismissed, the partition suit can continue in its present form without requiring any modification/ alteration to the schedule of properties. However, it cannot be denied at this stage that the final adjudication in the Probate Misc. Case, will have a substantial bearing on the outcome of the partition suit. 16. While adjudicating the dispute involved in the present CMP application, this Court is faced with two possible scenarios. The scenario No.1 emanates from the judgment of this Court in Ashok Kumar Ray’s case (supra), wherein the Coordinate Bench was pleased to stay the further proceeding of the partition suit. Whereas, in both the judgments of the Hon’ble Supreme Court, in Nirmala Devi (supra) as well as in Balbir Singh Wasu (supra), the Hon’ble Supreme Court directed the learned District Judge to make it convenient to dispose of the Probate proceeding as well as the suit. While analyzing the aforesaid judgments, this Court has already recorded the fallout of the scenario where the partition suit is allowed to be adjudicated first and a judgment and decree is allowed to be delivered in the partition suit. Such judgment and decree in the partition suit would definitely operate as res judicata so far the Probate Misc. Case is concerned, and that the same would definitely affect the right of the defendant No.1-Petitioner in the Probate Misc. Case, with regard to his right over the properties included in the WILL executed by the common ancestor. 17. Thus, this Court, in its legal wisdom, deems it proper that the best course would be to allow both the Probate Misc. Case as well as the partition suit to continue together, and the both shall be tried by one court one after the other, and that the judgment in the Probate Misc. Case shall be delivered first. Thereafter, taking note of the judgment in the Probate Misc. Case, the partition suit can be finally disposed of. Such a course would be in the best interest of justice, and the same would protect the interest of the parties, as well as prevent any unwarranted delay in the disposal of the proceedings. 18. In view of my aforesaid analysis of the factual as well as the legal position, further taking note of the contentions raised by learned counsels appearing for both sides, and keeping in view the judgments of this court in Ashok Kumar Ray’s case (supra), as well as the judgments of the Hon’ble Supreme Court, this Court has no hesitation in setting aside the impugned order dated 06.04.2026 passed by the learned Senior Civil Judge, Balasore in CS No.1973 of 2024 at Annexure-7. Accordingly, the same is hereby set aside. 19. This Court further directs the learned District Judge, Balasore to make it convenient for both the proceedings to be tried by one court, one after the other. Needless to mention here that every endeavor shall be made to record the evidence of common witnesses on one day in both the proceedings. However, the final decision in the Probate Misc. Case shall be rendered first. Thereafter, taking note of the final decision in the Probate Misc. Case, the suit for partition shall be finally adjudicated. An endeavor shall be made by the learned trial court to expedite both the proceedings and to conclude the same as expeditiously as possible. Parties to the both proceedings are directed to cooperate with the learned trial court for early disposal of the proceedings. 20. Accordingly, the CMP application stands allowed. However, there shall be no order as to costs. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 23rd July, 2026/ Anil/ Jr. Steno Designation: Junior Stenographer