KALLYANI Vs. SHEELAVATHY

JUDGEMENT

(1.) THE petitioners challenge Ext.P6 order dated 18th August, 2010 in I.A.No.386 of 2010 in I.A.No.1057 of 2009 in O.S.No.160 of 1985, on the file of the Court of the Munsiff of Hosdurg, by which, the court below dismissed the application filed by the petitioners under Section 10 of the Code of Civil Procedure.

(2.) O.S.No.160 of 1985 was filed by the respondent before the Munsiff's Court, Hosdurg claiming partition. A preliminary decree was passed on 6.9.1989. The plaintiff filed A.S.No.71 of 1989 and defendants 1 and 2 filed A.S.No.2 of 1990, challenging the judgment and decree of the trial court. The appeal filed by the plaintiff was allowed and the appeal filed by defendants 1 and 2 was dismissed by the First Appellate Court. Defendants 1 and 2 challenged the judgment and decree of the lower Appellate Court in S.A.No.734 of 1993, which was dismissed by this Court as per Ext.P1 judgment dated 12th August, 2008. Though defendants 1 and 2 filed a Special Leave Petition before the Honourable Supreme Court, that was d smissed as per Ext.P2 order dated 18.12.2008. Ext.P2 order rea as follows: "Delay condoned. The special leave petition is dismissed. However, all the contentions raised herein shall remain open."

(3.) THE court below dismissed the application on the ground that under Section 10 of the Code of Civil Procedure, only the subsequent suit can be stayed and the former suit cannot be stayed. THE view taken by the court below is correct. THEre cannot be any doubt that Section 10 would not be applicable to stay the trial of the suit instituted earlier in point of time. THE order passed by the court below is legal and proper. No interference is called for in the exercise of the jurisdiction under Article 227 of the Constitution of India.