MAKHAN LAL CHAUDHURY Vs. CHANDI NATH MAJUMDAR

JUDGEMENT

(1.) THIS is a rule calling upon the opposite party to show cause why a suit in which the same question involved as the question to be decided in the second appeal preferred to this Court, in which this application has been made, should not be stayed till the disposal of the second appeal. We think that the procedure followed in this case, though common, is irregular. By an application made in the second appeal pending here the appellant cannot pray that some other suit pending in another Court should be stayed. The power of staying suits pending in the Courts below is exercised by this Court sometimes in the interest of justice under the general power of supervision given to it under the law. But for that purpose a substantive application should be made. The application for stay of subsequent suits, because a previous suit in its appellate stage is pending is made on the principle of Section 10, Civil P.C. Attempt should first be made in the Court below to have the suit stayed and failing there to apply to this Court. We observe that when an application is made in the trial Court for stay of hearing of a suit on the ground that an appeal is pending in another Court for a similar suit or from a suit on a similar cause of action, it is generally refused on the ground that Section 10, Civil P.C., does not apply, but the principle of Section 10 has been extended to such case as the present. As a rule has been obtained by this Court we do not propose to discharge it on this technical ground. Mr. Chaudhuri, on behalf of the opposite party, agrees that it is in the interest of all parties concerned that the hearing of Civil Rule 1303 of 1928, pending in the Court of the Munsif, Third Court, Pabna, should be stayed pending the hearing of the appeal, and we order accordingly. The petitioner must pay the opposite party one gold mohur as costs of the rule.

(2.) HAVING regard to the point at issue in the appeal we direct that the hearing of it be expedited.