Section 10 CPC Cannot Stay Previously Instituted Title Suit Pending Subsequent Probate Case; Inherent Powers Under Section 151 Inapplicable When Probate Dismissed: Calcutta High Court

"From a bare reading of Section 10 it is evident that it is the pendency of the previously instituted suit that constitutes a bar to try the subsequent suit... In the case on hand the suit for recovery of Khas possession is the previously instituted suit and the probate proceeding is the subsequent proceeding." Calcutta High Court has held that Section 10 of the Code of Civil Procedure (CPC) cannot be invoked to stay a previously instituted title suit on the ground of pendency of a subsequently filed probate proceeding.

In a judgment delivered on August 21, 2026, Justice Hiranmay Bhattacharyya clarified the statutory boundaries of Section 10 CPC and the discretionary exercise of inherent powers under Section 151 CPC, ruling that while courts may stay proceedings ex debito justitiae in exceptional situations, such inherent relief cannot be granted when the probate proceedings stand dismissed for default.

The ruling came in a civil revision petition filed by a defendant against an order of the Civil Judge (Senior Division), Second Court at Barasat, which had rejected his plea to stay a 2018 suit for recovery of possession until the disposal of a subsequently filed 2019 probate case.

The original owner of the suit property, late Tapan Kumar Ghosh, had allegedly inducted the petitioner as a licensee. Following his demise, the predecessor-in-interest of the opposite parties instituted Title Suit No. 878 of 2018 for recovery of khas possession, asserting inheritance as the sole surviving legal heir. The petitioner resisted the eviction suit by setting up a counter-claim of ownership based on an alleged will executed by the deceased owner and subsequently filed a probate application registered as Misc. Case No. 175 of 2019 before the District Delegate, Barrackpore.

The primary question before the High Court was whether a previously instituted suit for recovery of khas possession can be stayed under Section 10 CPC during the pendency of a subsequently instituted probate proceeding. The Court was also called upon to determine whether the trial court ought to have exercised its inherent powers under Section 151 CPC to stay the title suit when the subsequent probate proceeding stood dismissed for default and only a recalling application was pending.

Scope And Rigour Of Section 10 CPC

Addressing the statutory bar under Section 10 CPC, the High Court observed that the provision operates strictly to stay a subsequent suit when the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties.

Prior Suit Cannot Be Stayed Under Section 10 CPC

Justice Bhattacharyya emphasized that the chronological order of institution is foundational to the applicability of Section 10 CPC, noting that the legislative mandate bars the trial of subsequent proceedings, never the prior one.

"From a bare reading of Section 10 it is evident that it is the pendency of the previously instituted suit that constitutes a bar to try the subsequent suit. In the case on hand the suit for recovery of Khas possession is the previously instituted suit and the probate proceeding is the subsequent proceeding. In the application under Section 10 of the Code of Civil Procedure, the petitioner prayed for stay of the previously instituted suit. To the mind of this Court, the provisions of Section 10 of the Code of Civil Procedure do not stand attracted to the case on hand."

The Court drew support from the coordinate bench ruling in Sri Binod Prasad vs. Haridas Sen (CO No. 3033 of 2017), which affirmed that a previously instituted declaratory suit cannot be stayed under Section 10 CPC due to a subsequently filed probate case.

Inherent Powers Under Section 151 CPC In Exceptional Circumstances

Turning to the interplay between Section 10 and Section 151 CPC, the High Court recognized that the statutory bar under Section 10 CPC does not exhaust the court's jurisdiction to prevent injustice.

Court May Stay Proceedings Ex Debito Justitiae

The Court underscored that where Section 10 CPC does not strictly apply, courts retain inherent jurisdiction under Section 151 CPC to stay proceedings in exceptional circumstances.

"It is now judicially settled that in cases not covered by the provisions of Section 10 of the Code of Civil Procedure, the Court may in exceptional situations pass an order of stay in exercise of inherent powers under Section 151 of the Code of Civil Procedure to make orders ex debito justitiae."

The bench noted that while a probate court declares only the validity and genuineness of a will without deciding title, the coordinate bench in Indrajit Mukherjee vs. Pradip Kumar Halder (2013 SCC OnLine Cal 1967) permitted a title suit to proceed up to the stage of argument, staying the final decision till the disposal of probate proceedings where the probate outcome directly impacts the title suit.

Mere Recalling Application Does Not Revive Dismissed Probate Case

The High Court distinguished the present case from the principle in Indrajit Mukherjee, observing that the petitioner's probate proceeding had been dismissed for default on March 18, 2026, leaving only a Section 151 restoration application pending before the District Delegate.

Dismissed Proceeding Has No Legal Existence

The Court held that the pendency of a restoration application cannot justify invoking inherent powers to stay a title suit that has already reached the stage of final arguments.

"Mere pendency of a recalling application, by no stretch of imagination, can be said to have the effect of reviving the probate proceeding. Therefore, since there is no existence of the probate proceeding in the eye of law at present, this Court is not inclined to pass an order of stay of the title suit which has already reached the stage of argument."

Supreme Court Precedents On Clubbing Distinguished

The bench also distinguished the Supreme Court decisions in Nirmala Devi vs. Arun Kumar Gupta (2005) 12 SCC 505 and Balbir Singh Wasu vs. Lakhbir Singh (2005) 12 SCC 503, explaining that the Apex Court had directed the transfer and clubbing of civil suits and probate proceedings due to overlapping issues.

The High Court observed that orders clubbing matters together for joint disposal do not constitute authority for the legal proposition that a previously instituted title suit must be stayed under Section 10 CPC during the pendency of a subsequent probate proceeding.

The Court similarly held the Patna High Court decision in Amrita vs. Rakesh Kumar (2016 SCC OnLine Pat 824) to be distinguishable on facts, reiterating that a suit for recovery of possession cannot be stalled indefinitely on speculative grounds.

Upholding the trial court's order, the High Court held that neither Section 10 CPC nor the inherent powers under Section 151 CPC warranted staying the prior suit for recovery of possession, particularly when the subsequent probate proceeding stood dismissed for default. Consequently, the High Court dismissed the revisional application without costs and directed the trial court to proceed with final arguments.

Date of Decision: 21 August 2026