Section 10 CPC cannot stay a previously instituted suit due to subsequently instituted probate proceedings.

The opposite parties pursued Title Suit No. 878 of 2018 for recovery of khas possession of the suit property against the petitioner, who had been inducted as a licensee by Tapan Kumar Ghosh, the original owner.

After Tapan Kumar Ghosh’s death, the opposite parties claimed succession through his sister, Pubali Bishnu Majumdar, who was subsequently substituted by the present opposite parties after her death.

The petitioner contested the suit and asserted ownership on the basis of a will allegedly executed by Tapan Kumar Ghosh; he also claimed to be the executor and legatee under that will.

A probate proceeding, Misc. Case No. 175 of 2019(P), was instituted before the District Delegate, Barrackpore.

The petitioner sought stay of the possession suit under Section 10 CPC pending disposal of the probate proceeding.

By the time of the application, evidence in the possession suit had concluded and the matter had been fixed for arguments.

The probate proceeding was dismissed for default on 18 March 2026, and only an application under Section 151 CPC for recall of that dismissal remained pending.

The trial court rejected the petitioner’s application under Section 10 CPC, leading to the present Article 227 petition.

Whether Section 10 of the Code of Civil Procedure could be invoked to stay the previously instituted suit for recovery of khas possession on the ground of a subsequently instituted probate proceeding.

Whether, despite Section 10 being inapplicable, the High Court should exercise its inherent jurisdiction under Section 151 CPC to stay the possession suit until disposal or revival of the probate proceeding.

Whether the mere pendency of an application to recall the dismissal of the probate proceeding revived that proceeding or justified staying a suit already fixed for final arguments.

Section 10 CPC applies where a previously instituted suit involving the same matter directly and substantially in issue is pending; it operates as a bar against proceeding with the subsequently instituted suit and does not ordinarily authorise staying the previously instituted suit.

In cases outside Section 10, the court may, in exceptional circumstances, exercise inherent powers under Section 151 CPC to make orders necessary in the interests of justice.

A probate court determines the validity and genuineness of the execution of a will concerning the properties covered by it, but does not adjudicate title to the property.

In Indrajit Mukherjee v. Pradip Kumar Halder, the court permitted the possession suit to proceed up to the stage preceding arguments where the probate determination could affect the suit, while postponing final argument and adjudication.

Nirmala Devi v. Arun Kumar Gupta and Balbir Singh Wasu v. Lakhbir Singh involved clubbing or transfer of overlapping title and probate proceedings, but were not authorities requiring stay of a previously instituted possession suit under Section 10 CPC.

The court also considered Sri Binod Prasad v. Haridas Sen, Sri Supriya Saha v. Sushma Das, and Amrita v. Rakesh Kumar.

Section 10 CPC was held inapplicable because the possession suit was the previously instituted proceeding, whereas the probate case was subsequent; the petitioner was effectively seeking to stay the prior suit, which Section 10 does not contemplate.

Although the court recognised that a probate determination concerning the will might have some impact on the parties’ claims in the possession suit, any discretionary stay under Section 151 CPC had to be assessed in the factual context.

Here, the possession suit had already completed evidence and reached the stage of arguments, while the probate proceeding had been dismissed for default.

The pending recall application did not, by itself, revive the dismissed probate proceeding or establish its present legal existence.

Consequently, the limited procedural approach adopted in Indrajit Mukherjee did not warrant delaying the final adjudication of the possession suit in these circumstances.

It further held that the dismissed probate proceeding, coupled only with a pending recall application, did not justify an inherent stay under Section 151 CPC.

The trial court’s order rejecting the stay application was therefore upheld, and C.O. No. 2523 of 2026 was dismissed without any order as to costs.