KRISHNARAO NAMDEORAO Vs. SHRIDHAR RAMCHANDRA KALE

JUDGEMENT

(1.) THE defendant (applicant) by a karar kharedi which, he contends, is a mortgage by conditional sale, transferred certain fields to the plaintiff (non-applicant). Thereupon a co-occupant of the field claimed preemption. The present plaintiff and defendant were both parties to the suit. The latter in that suit had urged that there was no sale in favour of the former, Shridhar Ramchandra Kale, but there was a mortgage by conditional sale and that the lease deed that was executed by the present defendant (applicant) in favour of the said Shridhar Ramchandra Kale was a bogus transaction. The present plaintiff contested this position and stated that the transaction was a transaction of sale and not a mortgage by conditional sale and that the lease was not bogus as alleged by the present defendant (applicant). The defendant (applicant) failed in his contention in the Courts below. He has, therefore, preferred a second appeal which is pending in this Court as Second Appeal No. 623 of 1944. The question regarding the lease in question is also raised in the second appeal. While the second appeal is pending, Shridhar Ramchandra Kale instituted the present suit, out of which this revision arises, on the basis of the lease deed, claiming from the defendant (applicant) the amount due on the term of the lease deed. Inasmuch as the defendant (applicant) has contended in the previous suit that this lease was bogus and intended to secure his interest, and as the point as to lease is to be decided in the second appeal which arose out of the previous suit between the parties, he contended that the present suit should be stayed till the decision of the second appeal by the High Court, as the matter in controversy is the same. The lower Court declined to stay the suit stating in its order-sheet dated 10-7-1945 as under: Parties as before. Stay application is rejected. As I am not inclined to stay as the appeal in High Court likely to get good deal of time. Issues framed. For settling date.

(2.) IT is against this decision that the defendant has filed this revision. He applied for stay under Section 10, Civil P.C. Without deciding whether the application falls under Section 10 of the Code or not the Court rejected the application on the ground that there would be delay in the proceedings if it were to wait till the decision by the High Court. But if Section 10 is applicable to the present case the defendant is entitled to have the suit stayed irrespective of the fact whether delay results or not. The Court below has not at all considered the question of applicability of* Section 10 to the facts of the present case. It was argued before me that Section 10 does not apply to the facts of the present case as the subject-matter of the suit is different. Section 10 says: