MURUGAIYAN Vs. MEENAKSHI ANIMAL

JUDGEMENT

(1.) THIS application is filed under section 151, Civil Procedure Code, for stay of final decree proceedings in O.S.No.1069 of 1980 on the file of the Principal District Munsif, Villupuram, pending disposal of the second appeal. It is alleged in the affidavit filed in support of the application that the respondent filed the suit O.S.No.1069 of 1980 for recovery of possession on the ground that she is the only heir of late Kanna Kounder and that the petitioner herein is the son of the respondent�s father�s concubine. The case of the petitioner defendant is that his mother was the lawfully married wife of Kannia Kounder and that the respondent�s mother was not the wife of his father and that she is the wife of one Narasinga Pillai. It is his further case that items 1 to 3 belonged to his father and that items 4 and 5 belonged to the deceased Thayarammal who is the first wife of his father. The trial Court dismissed the suit while the appellate Court revised the finding and held that both the plaintiff and the defendant are the daughter and son respectively of the deceased Kannia Kounder and that the plaintiff, respondent herein, is entitled to half share in items 1 to 3 while rejecting the claim of the respondent with regard to items 4 and 5 holding that they devolved on the petitioner through his mother. It is also submitted that the appellate Court has not made any provision for discharging the debts. It is against the said judgment, he has filed the second appeal. His previous stay application appears to have been dismissed. Since the respondent has filed an application in the trial Court for appointment of a Commissioner to divide the properties, he has filed this application for stay as he will be put to irreparable loss and injury if final decree is passed pending disposal of the second appeal.

(2.) THE said application is resisted by the respondent-plaintiff and in the counter affidavit, it is contended that she alone is entitled to the suit properties, that she has filed a cross appeal and that the petitioner has no case in the second appeal. It is further contended that in the earlier petition in C.M.P. No.9426 of 1985 praying for stav of further proceedings in pursuance of the decree passed by the appellate Court, she filed a counter affidavit. This court after hearing the counsel appearing on both sides held that there need not be any stay in so far as items 1 to 3 of the suit properties are concerned and consequently dismissed the application. In view of the above order, the present application for stay is not maintainable and is liable to be dismissed. It is further stated that the petition to send back the records in C.M.P. No.8246 of 1988 was ordered on 26.3.1988 and thereafter, he filed the petition for appointment of a Commissioner, Hence, she prayed for dismissal of the application.

(3.) LEARNED counsel for the respondents relied on the decision in Abdul Ghani v. Mahantram Saran, A.I.R. 1976 J & K 72, wherein reliance was placed on the decision of the Supreme Court in Arjun Singh v.Mohindrakumar, A.I.R. 1964 S.C. 993 referred to above. In that case it was held that though the principle of res judicata may not be applicable to the findings contained in interim or interlocutory orders, yet, a second application on identical facts had been refused. In that case it was held that though the principle of res judicata may not be applicable to the findings contained in interim or interlocutory orders, yet, a second application for obtaining substantially the same order of relief cannot lie when a previous application on identical facts had been refused. In Thakurdas v. Venilal A.I.R. 1977 Kar.60, it was held-