BISHEMBER NATH Vs. STATE OF J&K

JUDGEMENT

(1.) THIS appeal is directed against an order of a learned Single Judge of this court staying further proceedings in a suit field by the appellants. The suit is for the recovery of Rupees 2,15,202.70 filed against three defendants out of whom defendant No. 2 (respondent No. 2 herein) is stated to be the principal debtor, the other defendants being his guarantors. The suit has been stayed on an application made u/s 442 of the Companies Act, hereinafter the Act) by respondent No. 2 alone. The grievance of the appellants is that there was no valid ground for staying the suit even against respondent No: 2 and in no case could the learned Single Judge stay it against respondents 1 and 3 who are defendants 1 and 3 in the suit respectively.

(2.) A preliminary objection has been raised by Mr. Amar -chand appearing for respondents 1 and 3 that the order appealed is not a judgment within the meaning of clause 12 of the Letters Patent (Jammu and Kashmir), nor is the same otherwise appealable under any other provision of the Act. The contention of Mr. Sehgal on the other hand is that the order tantamount to a judgment within the meaning of Cl. 12 and that otherwise also the same is appealable u/s 483 of the Act. Two questions which therefore, presently fall for determination are :

(3.) IT is well settled that before an order can be said to be a judgment within the meaning of Cl. 12 of the Letters Patent, it must affect the merits of the case by wholly or partially deciding any right or liability involved in it. The impugned order has not result in the decision of any right or liability involved in the suit. What the learned Single Judge by staying the proceedings in the suit has done is that he has deferred the decision on those rights and liabilities. It is not as such a judgment within the meaning of Cl. 12. Mr. Sehgal in support of his contention that the impugned order is a judgment within the meaning of Cl. 12 invited our attention to two judgments of Calcutta and Bombay High Courts viz: Durgaprasad Vs. Kanti -chandra Mukerji, AIR 1935 Cal. 1 and Jai Hind Iron Mart Vs. Tulsiram Bhagwandas, AIR 1953 Bombay. 117. In both these cases an order staying or refusing to a suit u/s 10 Civil Pr. Code was held to bo a judgment within the meaning of Cl. 15 of the Calcutta and Bombay High Courts which is on pari -mteria with Cl. 12 of our Letters Patent on the ground that an order u/s 10 affects the jurisdiction of the court one way or the other and a decision which deals with the jurisdiction of a court is a decision affecting the rights of the parties. These authorities are clearly distinguishable. Once conditions laid down in Sec. 10 are satisfied, courts power to try the later suit are clearly taken away. It ceases to have jurisdiction to try such a suit. No such question, however, can arise in a proceeding sought to be stayed by the Court in exercise of its power u/s 442 of the Act. It has a description to stay or not to stay the proceeding which it may exercise in the peculiar circumstance of a given case. These decisions are. therefore, of no avail to the appellants. Answer to the second question must also be in the negative.