MAHAGANPATHI Vs. NATESA IYER

JUDGEMENT

(1.) These are revision petitions against the order of the District Munsif of Mannargudi refusing to stay the suits brought by the creditors of defendants 1, 2 and 3. In those suits defendant 1 is the father; defendants 2 and 3 are the sons and the suits are filed to recover sums of money alleged to have been borrowed by defendant 1. These suit were filed at various times from December 1932 up to June 1933. In June 1932 the petitioners had filed a partition suit O.S. No. 138 of 1932 on the file of the District Munsif of Mannargudi and the plaintiffs in these money suits have been in pleaded as defendants 4, 5, 6 and 7. For the sake of convenience, it was arranged to try the suits together as there was a common issue as to whether the debts incurred by the father were for immoral purposes and not binding on the sons. But on a preliminary point the learned District Munsif held that he had no jurisdiction to try the partition suit as the amount involved was beyond his powers and he returned the same for presentation to the proper Court.

(2.) Against these the petitioners filed a C.M.A. in the District Court, West Tanjore, which is still pending. They then applied to have the money suits filed by the creditors stayed and the Court refused to do so. It is argued before me that the Court is bound to do so under Section 10, Civil P.C. An elaborate argument has been addressed before me to show that the reason given for the refusal by the lower Court to grant the stay is not correct. That reason may be briefly summed up as this that the only point which the District Court had to try was the question of jurisdiction and therefore it had no jurisdiction to try the rest of the suit, and the arguments urged before me are directed to show that the appellate Court was seized of the whole suit. I do not think it is necessary to discuss these arguments because it seems to be perfectly clear that this is not a case where the entire matter in the subsequent suit is in issue in the previous suit.

(3.) In Murugesa Mudaliar V/s. Balasundarammal 1935 Mad. 24, I have fully discussed this matter and have held following the balance of the Madras authorities that it is not sufficient that there should be one matter in issue in common in both the suits. I will merely say here that the Madras cases in favour of this view are Sree Ramalu V/s. Sree Ramalu 1922 Mad. 304, Kuberan Nambudiri V/s. Koman Nair 1925 Mad. 574 and Vellacharry V/s. Muthiah 1927 Mad. 1132. The only Madras case quoted against it is Ramachandra Pillai V/s. Neelambal Achi 1923 Mad. 88, which is not sufficiently explicit to render it clear whether the case would have answered the test laid down by Venkatasubba Rao, J., in Sree Ramalu V/s. Sree Ramalu 1922 Mad. 304. As regards the Calcutta decision quoted against the Madras view Jinnat Bibi v. Howrah Jute Mill Co. 1932 Cal. 751, this was the decision of a single Judge who failed to notice the earlier Calcutta, decision in Bepin Behary Mazumdar V/s. Jogendra Chandra 1917 Cal. 248, which was relied on by Venkatasubba Eao, J., in Sree Ramalu V/s. Sree Ramalu 1922 Mad. 304 nor did he refer to any other cases on the point.