IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9325 of 2011 Madan Prasad & Ors Versus Awadh Kishore Prasad & Ors ---------------------------------- 05. 16.12.2011 Heard the learned counsel for the petitioners and the learned counsel for the respondents. The petitioners have filed this application under Article 227 of the Constitution of India against the order dated 15.02.2008 passed by 2nd F.T.C., Bettiah in Probate Case No.3 of 2006 rejecting the application filed by the petitioners under Section 151 C.P.C. praying for stay of further proceeding of the probate case during the pendency of the Partition Suit No.41 of 2007. It appears that probate case has been filed in the year 2006. The partition suit has been filed in the year 2007. The learned counsel for the petitioners submitted that in the facts and circumstances of the case, because the partition suit has been filed subsequently, Section 10 is not applicable but in exercise of inherent jurisdiction under Section 151 C.P.C., the Court can stay the further proceeding of earlier suit. On the contrary, the learned counsel appearing on behalf of the respondents submitted that when there is specific provision for stay i.e. Section 10 of the Code of Civil Procedure, Section 151 is not applicable. 2 A Division Bench of this Court in AIR 1999 Patna 103(Smt. Tara Devi vs. Smt. Kamla Gupta), held that on a plain reading of Section 10 of the Code of Civil Procedure, it will appear that the Section provides for staying of a subsequent suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The clear language of the Section does not justify the staying of an earlier suit pending disposal of the subsequent suit. The Division Bench also held that the power to stay a suit under Section 10 of the Code of Civil Procedure can be exercised only in accordance with the said provisions. If the conditions of Section 10 are not fulfilled and/or if the Court comes to the conclusion that it would not be justified in exercising its jurisdiction under Section 10 of the Code of Civil Procedure, a suit cannot be stayed by recourse to Section 151 of the Code of Civil Procedure. In view of the above settled position of law, I do not find any illegality or jurisdictional error in the impugned order. Thus, it cannot be interfered with in supervisory jurisdiction under Article 227 of the Constitution of India. Accordingly, this application is dismissed. Saurabh (Mungeshwar Sahoo,J.)