NITYANANDA GHOSE Vs. RAJPUR CHHAYA BANI CINEMA LTD

JUDGEMENT

(1.) On this notice of motion taken out by the defendant Company, the application is made to stay the suit and all proceedings herein until the plaintiff has exhausted all his available remedies against the mortgaged property or until he abandons his mortgage security. The application is made under Section 68 (2), T. P. Act read with Sub-section (1) and Clause (a) thereof.

(2.) In order to appreciate the point advanced by the applicant and in order to determine the point raised, it is necessary to refer to the nature of pleadings in this suit which the applicant wants to stay.

(3.) This suit was instituted by the plaintiff on or about 9th January 1952. In para. 1 of the plaint the claim against the defendant company is made only on the basis of its alleged liability as drawer of a Promissory Note dated 11th January 1949 for the sum of Rs. 40,000/- carrying interest at the rate of 6 per cent, per annum payable on demand to the plaintiff or order. That is the only claim made in the plaint. In para 3 of the plaint the plaintiff pleads that the defendant also created an equitable mortgage by deposit of title deeds in respect of a cinema house situate at Rajpur outside the jurisdiction of this Court but that is only pleaded to ask for leave under Order 2. Rule 2, C. P. C. to file a separate suit to enforce the mortgage if and when necessary. In this suit the plaintiff asks for a decree for a sum of Rs. 47,200/- inclusive of interest due on the promissory note. That is the only decree claimed by the plaintiff on this plaint.