C ARUNACHALAM PILLAI Vs. S KRISHNASAMY

JUDGEMENT

(1.) THE petitioners, who have suffered an order in their Application under Section 10, C.P.C., which has been filed by them for staying their Appeal till the disposal of the Suit that has been instituted against them by the respondents herein in O.S. No.5 of 2001, is before this Court.

(2.) THE short matrix of the case is as follows:-- THE respondents 1 to 4 herein have filed the suit against the petitioners in O.S. No.5 of 2001 on the file of the Subordinate Judge, Kovilpatti for specific performance of an agreement of sale. THE said Suit has been decreed by the learned Subordinate Judge, Kovilpatti. Later, in the Appeal filed by the petitioners herein in A.S. No.57 of 2005 before the Principal District Court, Tuticorin, the judgment and decree made in O.S. No.5 of 2001 has been set aside and the matter has been remitted back to the Subordinate Judge, Kovilpatti. C.M.A. No.225 of 2006 has been filed by the petitioners before this Court against the order of remand made in A.S. No.57 of 2005 and the same is pending. In the meanwhile, the petitioners have filed the Suit against the respondents in O.S. No.293 of 2004 on the file of the District Munsif, Kovilpatti for permanent injunction restraining the respondents herein from interfering with their peaceful possession and enjoyment of the suit property. THE said Suit has been dismissed and the petitioners have filed an Appeal in A.S. No.22 of 2006 on the file of the Subordinate Judge, Kovilpatti. THE petitioners have filed an Application under Section 10, C.P.C. to stay the Appeal preferred by them in A.S. No.22 of 2006 till the disposal of the suit in O.S. No.5 of 2001 preferred by the respondents herein on the file of the Subordinate Judge, Kovilpatti. According to the petitioners, the subject matter of the suit in O.S. No.5 of 2001 and the subject matter of the Suit in O.S. No.293 of 2004 which is now under Appeal in A.S. No.22 of 2006 is one and the same and in order to avoid conflict of interest, the said Application under Section 10, C.P.C. has been filed. THE learned Subordinate Judge, Kovilpatti by his order dated 27.7.2006 has dismissed the said Application filed by the petitioners in I.A. No.57 of 2006. THE present Revision is filed challenging the said order passed in I.A. No.57 of 2006 in A.S. No.22 of 2006 dated 27.7.2006 by the learned Subordinate Judge, Kovilpatti.

(3.) ACCORDING to the learned counsel, as per Section 10, C.P.C, the petitioners cannot ask for stay of the First Appeal. I have heard the learned counsel for both the petitioners and the respondents. As admitted by the petitioners, their Suit in O.S. No.293 of 2004 on the file of the District Munsif, Kovilpatti for permanent injunction restraining the respondents from interfering with their peaceful possession and enjoyment of the suit property was dismissed on 2.1.2005 and the Appeal filed by them against the said judgment and decree is pending on the file of the Subordinate Judge, Kovilpatti in A.S. No.22 of 2006. The other Suit filed by the respondents in O.S. No.5 of 2001 is for specific performance of an agreement of sale. Hence, the relief prayed for in O.S. No.5 of 2001 and the relief in O.S. No.293 of 2004 are entirely different. In this connection, it is useful to extract Section 10, C.P.C. which reads as follows: