IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20180 of 2011 Satyendra Kumar Singh Versus Manorama Devi & Ors ---------------------------------- 3. 08.12.2011. Heard the learned counsel for the petitioner. This application under Article 227 of the Constitution of India has been filed by the defendant No.15 petitioner against the order dated 3.8.2011 passed by sub Judge 7th Sasaram, Rohtas in Title Suit No. 144 of 2005 whereby the learned court below rejected the application filed by the petitioner under Section 10 of the C.P.C. The learned counsel for the petitioner submitted that Title Partition Suit No. 144 of 2005 is pending and thereafter the petitioner filed probate case No. 209 f 2006 therefore, the petitioner filed application under Section 10 of the Code of Civil Procedure for staying the further proceeding in partition suit No. 144 of 2005 which has wrongly been rejected by the court below. In AIR 1999 Patna 103 Smt. Tara Devi vs. Smt. Kamala a division bench of this court has held that provisions of section 10 do not provide for stay of earlier suit pending disposal of subsequent suit and in such circumstances no recourse can be taken under Section 151 of the Code to stay earlier suit. Admittedly, in the present case the partition suit is of the year 2005 and the probate case is of the year 2006. Moreover, the provision as contained in Section 10 prohibits the trial of any suit in 2 which the matter in issue is also directly and substantially in issue in a previously instituted suit. So far the present case is concerned the issue which is involved in probate case is with regard to genuineness or execution of the will. This issue is not involved in the partition suit. Considering the above facts and circumstances of the case it appears that the lower court below has rightly refused to stay further proceeding of partition suit which was filed earlier to the probate proceeding which was filed subsequently. I therefore, find no illegality or jurisdictional error in the impugned order of the trial court therefore, this writ application is dismissed. S.S. (Mungeshwar Sahoo,J.)