JUDGMENT : DR. A.K.RATH, J. 1. This petition challenges the order dated 17.05.2017 passed by the learned 2nd Civil Judge (Senior Division), Bhubaneswar in C.S No.1012 of 2008 whereby and where under the learned trial court allowed the application of the defendants under Section 151 CPC to stay the further proceeding of C.S. No.1012 of 2008 till disposal of C.S. No.4747 of 2014 arising out of Test Case No.27 of 2009 pending before the same court. 2. Petitioner as plaintiff instituted C.S. No.1012 of 2008 in the court of the learned 2nd Addl. Civil Judge (Senior Division), Bhubaneswar for partition impleading the opposite parties as defendants. Defendant no.1 filed an application being Test Case No.27 of 2009 under Section 276 of the Indian Succession Act before the learned District Judge, Khurda at Bhubaneswar for probate of the Will said to have been executed by the father of the parties. Since issues became contentious, Test Case No.27 of 2009 was transferred to the court of learned 2nd Addl. Civil Judge (Senior Division), Bhubaneswar and renumbered as C.S. No.4747 of 2014. Both the cases are pending adjudication in the same court. While the matter stood thus, defendant no.1 filed an application to stay further proceeding C.S. No.1012 of 2008 till disposal of C.S. No.4747 of 2014. The same having been allowed, the instant case has been filed under Article 227 of the Constitution of India. 3. Heard Mr. A.P. Bose, learned counsel for the petitioner and Mr. S.S. Mohanty, learned counsel for the opposite parties. 4. The sole question arises for consideration is as to whether further proceeding in C.S. No.1012 of 2008 pending in the court of learned 2nd Civil Judge (Senior Division), Bhubaneswar shall remain stayed till disposal of C.S. No.4747 of 2014? 5. An identical matter came up for consideration before this Court in Ashok Kumar Ray v. Smt. Reba Biswas and others 2017 (1) OJR 348 This Court in para-7 and 8 held thus; “7. Before proceeding further, it is apt to refer to the decision of this Court in the case of Jagojoti Bose and another v. Baruruchi Bose and others, AIR 1970 Orisa 28. In Jagojoti Bose (supra), the disputed property belongs to one Haricharan Bose. He had three sons. On 10.10.1946, he executed a Will in respect of the disputed property in favour of defendant nos.4 and 5. In Jagojoti Bose (supra), the disputed property belongs to one Haricharan Bose. He had three sons. On 10.10.1946, he executed a Will in respect of the disputed property in favour of defendant nos.4 and 5. Thus he divested the plaintiff-another son from inheritance under the Will. On 30.10.1958, the plaintiff instituted a suit for partition claiming 1/3rd interest. Defendants 4 and 5 filed written statement claiming the entire property to themselves on the strength of the Will. On 12.9.1960, defendants 4 and 5 filed an application for Probate of Will in the court of the learned District Judge, Cuttack. On 28.6.1961, a preliminary decree for partition was passed in favour of the plaintiff. On 28.11.1962, Probate of Will was granted after contest by the plaintiff. On 10.7.1964, the plaintiff filed an application for making final the preliminary decree for partition. Defendants 4 and 5 filed an objection to the same contending, inter alia, that the plaintiff had no title in the disputed property after probate was granted. The contention was negatived by the trial court. The same was challenged before this Court. This Court held that by preliminary decree the jural relationship amongst the parties inter se was finally decided and it was declared that the plaintiff had a one third interest in the disputed property. If the Probate of Will is allowed to vary the rights, a conclusion must be reached to the effect that the plaintiff is not entitled to the property. This would affect the very basis of the preliminary decree and the rights carved out. The juristic theory underlying the reason why this cannot be done is that defendants 4 and 5 could have pressed into service the Probate if they had been vigilant in time. They had taken the defence under the Will in the written statement. Thus their claim on the strength of the Will and the Probate subsequent to the preliminary decree is barred by the principle of res judicata, actual and constructive. It was open to the defendants 4 and 5 to get the partition suit stayed, proceed with the Probate proceeding pending in the court of the District Judge and, after obtaining the Probate, to set it up in defence in the partition suit. This was the only course available to them. When they failed to do so, they abandoned their right based on the Probate. This was the only course available to them. When they failed to do so, they abandoned their right based on the Probate. By the time the Probate was granted, the rights of the parties on the basis of inheritance had already been worked out and the stage of setting up the Probate in defence had passed off. (Emphasis laid) 8. In Nirmala Devi (supra), the question arose whether the probate proceeding could be clubbed with the suit. The apex Court held that in the probate proceedings on the question of proof of the Will have a direct impact on the suit. Only on this short ground and without expressing any opinion on the merits of the controversy between the parties, the apex Court directed the learned District Judge to make it convenient to dispose of the probate proceeding as well as suit. The same view was reiterated in Balbir Singh Wasu v. Lakhbir Singh and others (2005) 12 SCC 503 .” 6. In view of the authoritative pronouncement of the case in the case of Ashok Kumar Ray (supra), further proceeding of C.S. No.1012 of 2008 shall remain stayed till disposal of C.S. No.4747 of 2014 pending before the 2nd Civil Judge (Senior Division), Bhubaneswar. Learned trial court shall dispose of C.S No.4747 of 2014 arising out of Test Case No.27 of 2009 within a period of six months from today. Thereafter, learned trial court shall proceed with C.S. No.2012 of 2008. The petition is disposed of.