DIP NARAIN TEWARI Vs. GANGA PRASAD MANI TEWARI

JUDGEMENT

(1.) This is a revision application arising out of proceedings Under Section 144, Code of Civil Procedure. These proceedings relate to mesne profit of a property. They arise out of a suit in which the Plaintiff claimed title to the said property. The Plaintiff's suit having been decreed, the Defendants are agitating the question of title in appeal in the High Court. The Defendant made an application Under Section 10, Code of Civil Procedure, in the court of the first instance on the ground that as the same question was pending in appeal in the High Court, the proceedings for restitution should be stayed. This application was rejected by the lower appellate court.

(2.) Dissatisfied with the said order, the Defendant has filed this revision application.

(3.) Having heard the learned Counsel for the applicant, I am of opinion that there is no substance in this revision application. Section 10 has no application to the present case. The present proceeding is not a suit. Even if it be deemed to be so, then the previous proceeding is not a previously instituted suit. It is an appeal in the same suit out of which the present proceedings have arisen. Moreover, the matter which is directly and substantially in issue in the proceedings Under Section 144, Code of Civil Procedure, is not the matter which is directly and substantially in issue in that appeal. In appeal, the main question relates to the title of the Plaintiff. In Section 144, Code of Civil Procedure, proceedings, the main question relates to the mesne profits. It is true that the mesne profits follow as a consequence of the decision of the title. From that, however, it does not follow that the main question in both the cases is the same.