- (1.) This petition is directed against the order dated 22.01.2015 passed by the learned Civil Judge, Senior Division, Court No.2, West Tripura, Agartala in T.S. (Partition) 06 of 2014 rejecting the application filed by the petitioners, who are defendants 1 to 5 before the learned Trial Court whereby their application for stay of the suit has been dismissed.
(2.) Briefly stated the facts of the case are that the respondent herein filed a suit for partition of the suit property and this suit is numbered as T.S. (P) 06 of 2014. In the said suit a written statement was filed by the defendants that the suit property had been willed to them by the owner and therefore, they were the exclusively in possession of the suit property. The defendants after filing of the suit filed a petition under the Succession Act in the Court of the Additional District Judge, Court No.3, Agartala praying that probate of the Will be granted. Thereafter, an application under Section 10 read with Section 151 of the CPC for stay of the suit filed by the respondent.
(3.) The admitted facts are that this partition suit was filed earlier and the application for probate was filed later. Section 10 of the Code of Civil Procedure provides that when a matter between the same parties is substantially in issue in subsequent proceeding then it is the subsequent proceeding which have to be stayed. The prior proceedings cannot be stayed even if the prior proceedings are pending with a Court of inferior jurisdiction and the latter proceedings are pending before a superior Court. It is not the hierarchy of the Court which is to be taken into consideration, but the only question is which is the earlier proceedings between the parties.;