1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2587 OF 2010 Smt. Rukmini Kaluram Nangade & Anr. .. Petitioners Vs Smt. Kumudini Kaluram Nangade. .. Respondent -- Shri H.P. Ghadigaonkar for the Petitioners. Shri Nitin Jamdar for the Respondent. -- CORAM : A.S.OKA, J. DATE : 6TH APRIL, 2010 P.C: . Heard learned counsel appearing for the Petitioners and the learned counsel appearing for the Respondent. 2. By this Writ Petitioner under Article 227 of the Constitution of India, the Petitioners have challenged the order dated 3rd February, 2010 passed by the Trial Court by which an application made by the Petitioners under Section 10 of the Code of Civil Procedure, 1908 ( hereinafter referred to as “the said Code” ) has been rejected. 3. The application was made by the Petitioners in an application 2 made by the Respondent under the Bombay Regulation No.VIII of 1827 seeking heirship certificate in respect of a liquor licence held in the name of the deceased Kaluram. The Respondent claims to be a legally wedded wife of the said Kaluram. The present Petitioners had filed a suit for injunction and for possession against the Respondent in the Civil Court. In the said suit, the 1st Petitioner claimed that she is a legally wedded wife of the deceased Kaluaram. The said suit was dismissed by the Civil Court. An appeal preferred by the Petitioners against the said decree of dismissal of the suit has been admitted by this Court and the same has been pending. 4. The Trial Court purported to treat the application filed by the Respondent for heirship certificate as a suit. An application was made by the Petitioner on 12th August, 2002 at Exhibit-15 in the said suit of the Respondent. In the said application, it was contended that the issue regarding validity of the marriage of the Respondent will be decided in the pending appeal in this Court, and therefore, till disposal of the appeal, the proceedings of the suit of the Respondent be stayed under Section 10 of the said Code. The said application was rejected. Being aggrieved by the rejection of the said application, a Writ Petition No. 3889 of 2009 came to be filed which was decided by this Court. This Court dismissed the Petition. While dismissing the said Petition, this Court observed thus:- “.....Therefore, the matter does not come under the purview of Section 10 of the Civil Procedure Code. 9. It is necessary to mention that during the enquiry 3 of the heirship certificate as contemplated under Section 373 of the Indian Succession Act, if the learned Trial Court finds it difficult to decide the prima facie preferential title to issue heirship certificate and decides to keep the matter pending till the decision of the appeal, the order of rejection of the application under Section 10 of the Civil Procedure Code should not be construed that it has taken away the discretion and power of the Trial Court to adjourn the matter or keep the matter pending on the ground of pendency of the appeal. Therefore, there is no need to interfere with the order of the Trial Court. The petition is dismissed with no order as to costs.” 5. Thereafter, the present Petitioners moved a fresh application on 9th December, 2009 at Exhibit-34 purporting to be an application under Section 10 of the said Code wherein a prayer was again made for stay of the proceedings of the suit ( application for grant of heirship certificate ) till the disposal of the appeal by this Court. By the impugned order, the said application has been rejected. 6. The learned counsel appearing for the Petitioners submitted that though in the earlier Writ Petition, this Court might have rejected the arguments of the Petitioners on the basis of Section 10 of the said Code, the discretion of the Trial Court to stay the proceedings of the suit has been kept intact by this Court. He invited my attention to the issues framed in the said suit filed by the Respondent and submitted that the issues are directly and substantially involved in the first appeal pending in this Court. He submitted that to avoid any conflicting decision, the Trial Court ought to have stayed the suit. He submitted that this Court while deciding the 4 earlier petition has specifically observed that the Trial Court has power to keep the suit pending on the ground of pendency of the appeal. He, therefore, submitted that the Trial Court ought to have stayed the suit. 7. I have given careful consideration to the submissions. It must be stated here that what was filed by the Respondent was an application for grant of heirship certificate under the Bombay Regulation VIII of 1827. The said application cannot be really treated as a suit. It appears that in view of the contest by the Petitioner, the Trial Court has purported to treat the said application as a suit. Though the Trial Court may have used the nomenclature as the suit, such application cannot be treated as a Civil Suit considering the very limited scope of adjudication in such application. Issue of title cannot be decided in such application. 8. Perusal of the judgment and order of this Court in Writ Petition No.3899 of 2009 shows that this Court affirmed the view taken by the Trial Court earlier that Section 10 of the said Code will have no application. In the case of Manohar Lal Chopra V. Rai Bahadur Rao Raja Seth Hiralal [AIR 1962 SC 527 ], the Apex Court held that the jurisdiction under Section 151 of the said Code cannot be exercised so as to nullify the express provision of the said Code. The Apex Court also held that where the Code expressly deals with a particular matter, the provision should normally be regarded as exhaustive. The Apex Court held that if in a case Section 10 of the said Code has no application, it is not open for the Court 5 to pass an order of stay by invoking Section 151. The view taken by the Apex Court has been reiterated in its subsequent decision in the case of National Institute of Mental Health & Neuro Sciences Vs. C. Parameshwara, [ AIR 2005 SC 242 ]. 9. As far as the issue of applicability of Section 10 of the said Code is concerned, the issue has been already decided by the Court. It is well settled law that this Court cannot exercise power under Section 151 of the said Code to stay the proceedings of the suit. The learned counsel appearing for the Petitioners placed reliance on a decision of the Apex Court in the case of Pukhraj D. Jain & Ors. v. G. Gopalakrishna, [AIR 2004 SC 3504 ]. The said decision will have no application. In the present case, as this Court has already held that Section 10 of the said Code will not apply, no case for interference is made out. The Writ Petition is rejected. It is, however, made clear that no adjudication is made by this Court on merits of the pending proceedings. 10. The hearing of the pending suit is expedited and the Trial Court is directed to conclude the hearing of the pending suit by the end of September, 2010. (A.S.OKA, J)