Madhab Kumar Saha vs Tarun Kumar Saha & Anr
2021 Latest Caselaw 1446 Cal

15.02.2021.
Item no. 76.
Court No. 2
   ap
                               F.A.T. No. 448 of 2019
                                       With
                 I.A. No. 1 of 2019 (Old No. CAN 10788 of 2019)
                            (Through Video Conference)

                               Madhab Kumar Saha
                                     Versus
                             Tarun Kumar Saha & Anr.


                     Mr. Kushal Paul,
                     Mr. Saptarshi Dutt.
                                                     ...For the appellant.
                     Mr. Ankit Agarwala,
                     Ms. Alotriya Mukherjee,
                     Mr. Vineet Ojha.
                                                   ...For the respondents.

This appeal arises from a judgment and order

dismissing an application for grant of Probate.

An application has been taken out by the

appellant seeking for stay of all further proceedings in

Partition Suit No. 319 of 2019 pending before the

learned Civil Judge (Senior Division) at Berhampore,

Murshidabad till the disposal of the instant appeal.

It is alleged in the said application that taking

advantage of the dismissal of an application for grant

of Probate, the partition suit has been filed and if it is

allowed to continue, it will have the counter effect on

the merits of the instant appeal.

We are conscious of the provisions contained in

Section 10 of the Code of Civil Procedure, which

provides for a stay of the later proceeding pending the

earlier proceeding.

The ingredients to invoke such provisions is that

the judgment passed in the earlier proceeding shall

operate as res judicata in a subsequent proceeding

though the parties are the same in both the

proceedings.

We are also not oblivion of the fact that the

inherent power reserved to the Court can be exercised

in the mitigating circumstances and to render justice

to the litigants.

However, we find that since the issues involved

in both the proceedings are distinct and separate, one

does not overlap the other. The partition suit appears

to be at the nebulous stage and we do not feel that

there is any necessity to stay the said partition suit

pending the appeal before this Court.

The application is, thus, disposed of with the

following directions:

(a) Let the Lower Court's Record of Testamentary

Suit No. 9 of 2006 be called from the Additional

District Judge, 3rd Court, Berhampore,

Murshidabad through Special Messenger at the

costs of the appellant. Such costs shall be put in

within a week from date.

(b) After arrival of the Lower Court's Record, the

Office shall examine the same and if found

complete, shall issue notice of arrival of Lower

Court's Record on the Advocate-on-Record of the

appellant under Rule 12 of Chapter IX of the

Appellate Side Rules.

(c) The appellant is directed to prepare and file eight

copies of informal paper books - printed,

typewritten or cyclostyled, as the case may be -

out of court, within a period of eight weeks from

the service of arrival of Lower Court's Records on

the Advocate-of-Record of the appellant.

(d) Since the respondents have entered appearance,

the learned Advocate representing them waives

service of appeal on them. The instant appeal

shall be treated as ready as regards service.

(e) All other formalities regarding preparation of the

paper books including the filing of the appellant's

declaration are dispensed with.

After filing of the paper books, liberty is granted

to the parties to pray for early listing of the instant

appeal before the appropriate Bench.

Urgent photostat certified copy of this order, if

applied for, be given to the parties on priority basis.

(Harish Tandon, J.)

(Abhijit Gangopadhyay, J.)