IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15026 of 2011 Krishna Kishore Prasad Versus Jugal Kishore Prasad & Ors ---------------------------------- 03. 15.09.2011 This application under Article 226 of the Constitution of India, treating the same application as application under Article 227 of the Constitution of India. This application has been filed against the order dated 15.06.2011 passed by Addl. District Judge, IInd Patna in Probate Case No.71 of 2010 by which the Court below refused to grant stay of partition suit No.197 of 1998 pending in the Court of Sub Judge IInd, Patna. The learned counsel for the petitioner relied upon a Division Bench decision of this Court passed on 22.04.1992 in Civil Revision No.200 of 1988 as contained in Annexure 2 to this writ application. From perusal of the said order of the Division Bench, it appears that Civil revision was not disposed of on merit. It has been observed that in view of the nature of the order which were going to pass, it is not necessary to decide this revision application on merit. Therefore, in my opinion, since the order has not been passed on merit, the said order is not applicable in the 2 present case. In a decision reported in A.I.R. 1999 Patna 103, a Division Bench of this Court has held that provisions of Section 10 does not provide for stay of earlier suit on the ground of pending disposal of subsequent suit. No recourse can be taken to Section 151 of the Code of Civil Procedure to stay earlier suit. Admittedly, in the present case, the partition suit is of the year 1998 and the probate case has been filed in the year 2010. Moreover the application for stay of partition suit has been filed before the probate Court. In another decision reported in A.I.R. 2006 Patna 164, this Court considered the Division Bench decision reported in A.I.R.1999 Patna 103 and also the order passed by the Division Bench in Civil Revision which is being relied upon by the petitioner and then it is held that the previous suit cannot be stayed on the ground of pendency of subsequent probate proceeding. In view of the above settled principle of law, I do not find any reason to interfere with the impugned order. Accordingly, this writ application is dismissed. Sanjeev/- ( Mungeshwar Sahoo, J.)