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2005 DIGILAW 950 (MAD)

Arumugha Udayar v. Lakshmi

2005-06-28

R.BANUMATHI

body2005
Judgment :- This revision is preferred against the order of the learned Additional District Munsif, Namakkal dated 27.8.2003 made in I.A.No.515/2003 in O.S.No.542/2002, allowing the petition filed under Section 10 CPC and staying the suit in O.S.No.542/2002 till the disposal of S.A.No.728/1998. The Plaintiff in O.S.No.542/2002 is the Revision Petitioner. For convenience, parties are referred to in their rank in O.S.No.22/1989. 2. Palaniammal - wife of Shanmugam and her son-in-law - Muthusami filed O.S.No.22/1989 on the file of the Sub Court, Namakkal for partition and separate possession relating to the property in S.No.174/1 to 174/5. Case of the Plaintiffs was that S.No.174/1 Vasanthapuram Village, Namakkal Taluk originally comprised of 10.82 acres. It belonged to D-1 – Gurusami and his cousin Arumuga Udayar – D-5. S.No.174/1 was later subdivided as S.Nos.174/1 to 174/5. Money suits were filed against D-1 – Gurusami. In the execution proceeding, half share of the said Gurusami had been sold in the Public Auction. The second Plaintiff purchased 1/4th share in S.No.174/1 in the Court auction. One Periyanathan purchased remaining 1/4th share of the said Gurusami. The said Periyanathan sold 1/4th share of the first Plaintiff Muthusami. Thus the Plaintiff claimed to be entitled to half share in S.No.174/1 – 10.82 acres which was later subdivided as S.Nos.174/1 to 174/5. Since D-5 - Arumuga Udayar claimed that there was no partition by metes and bounds, the Plaintiffs have filed O.S.No.22/1989 – suit for partition, on the file of Sub Court Namakkal. The said suit was dismissed by the Judgment dated 28.3.1995. 3. A.S.No.100/1995:- The Plaintiffs have preferred this appeal before the District Court Salem. Partly allowing the appeal, the learned District Judge found :- (i) that no property is available for partition and that D-1 to D-4 are not entitled to any of the suit items; (ii) S.Nos.174/1 and 174/5 belong to D-5; (iii)S.Nos.174/2 and 174/3 belong to D-1 Gurusami Udayar, whose share, the Plaintiffs have purchased in the Court auction sale; and; (iv) only S.No.174/4 is the joint property of D-1 and D-5 and the Plaintiffs are entitled to partition of their half share only relating to S.No.174/4. 4. S.ANo.728/1998:- As against the Judgment of the Additional District Munsif made in A.S.No.100/1995, the Plaintiffs have preferred the second appeal and the same is pending. 5. 4. S.ANo.728/1998:- As against the Judgment of the Additional District Munsif made in A.S.No.100/1995, the Plaintiffs have preferred the second appeal and the same is pending. 5. O.S.No.542/2002:- Based upon the findings in A.S.No.100/1995 that D-5 Arumuga Udayar is entitled to S.Nos.174/1 and 174/5, D-5 Arumuga Udayar has filed this suit for declaration and Permanent Injunction regarding S.Nos.174/1 and 174/5. 6. I.A.No.515/2003:- D-6 Lakshmi has filed this petition under section 10 of the CPC to stay the further proceedings in O.S.No.22/1989, as they are one and the same. It is further alleged that S.A.No.728/1998 is still pending and the decision in the second appeal would have bearing on the decision of this case and prayed for staying the suit O.S.No.542/2002. The application was resisted by the Plaintiffs contending that his title had been upheld by the Appellate Court in A.S.No.100/1995 holding that D-2 to D-4 are having no right or interest in the suit property and hence the suit O.S.No.542/2002 cannot be stayed. 7. Upon consideration of the contentions of both parties, the learned Additional District Munsif, Namakkal held that the subject matter in the second appeal is the same as in O.S.No.542/2002 and the decision in the second appeal would have bearing on the Judgment in O.S.No.542/2002. Finding that the controversy and the subject matter are directly and substantially in issue, the learned District Munsif held that the Judgment in the second appeal would impinge upon the decision and on those findings allowed the application filed under section 10 CPC. 8. Aggrieved over the allowing of the application under section 10 CPC and staying the suit O.S.No.542/2002, till the disposal of the second appeal, the Revision Petitioner/ D-5 Arumuga Udayar has preferred this revision. 9. To give quietus to the matter, this Court had thought it fit to take up S.A.No.728/1998 for hearing the arguments along with this revision. When it came up for hearing, it was noticed that S.A.No.728/1998 is still pending admission. Since S.A.No.728/1998 is not ripe for final hearing, only the arguments in the revision were heard. 10. The learned counsel has contended that the dispute is between the Plaintiffs and D-5. It is further submitted that in A.S.No.100/1995, it has been clearly held that D-1 to D-4 have no right in the suit property i.e. S.No.174/1 and 174/5 and that they have no right to interfere. 11. 10. The learned counsel has contended that the dispute is between the Plaintiffs and D-5. It is further submitted that in A.S.No.100/1995, it has been clearly held that D-1 to D-4 have no right in the suit property i.e. S.No.174/1 and 174/5 and that they have no right to interfere. 11. Submitting that the essential conditions to Section 10 CPC is satisfied, the learned counsel for the respondent has submitted that the parties and the subject matter are one and the same. It is further submitted that the decision in S.A.No.728/1998 would certainly impinge upon the rights of the parties in O.S.No.542/2002. The learned counsel for the respondent submitted that the impugned order does not suffer from any impropriety. Further submitting that the second appeal is pending final decision, D-5 Arumuga Udayar cannot claim exclusive title over S.No.174/1 and 174/5 and when the title of Arumuga Udayar is in dispute, he cannot seek for declaration. 12. Upon consideration of contentions of both parties, the impugned order and other materials on record, the following points arise for consideration in this revision :- (i) in the facts and circumstances of the case, and the parties involved in both litigation, whether Sec.10 CPC is attracted ?; (ii) would not the decision in the second appeal affect the decision in O.S.No.542/2002 ?; and; (iii) whether the impugned order staying O.S.No.542/2002 suffers from any material irregularity warranting interference ? 13. The four essential conditions for the application of Section 10 CPC are :- 1. that the matter in issue in the second suit is also directly and substantially is issue in the first suit; 2. that the parties in the second suit are the same or parties under whom they or any of them claim litigating under the same title; 3. that the Court in which the first suit is instituted is competent to grant the relief claimed in the subsequent suit; 4. that the previously instituted suit is pending :- (a) in the same Court in which the subsequent suit is brought, or (b) in any Court in India, or (c) in any Court beyond the limits of India established or constituted by the Central Government, or (d) before the Supreme Court. 14. We may presently demonstrate that the essential conditions of Sec.10 CPC are satisfied. 14. We may presently demonstrate that the essential conditions of Sec.10 CPC are satisfied. The parties, subject matter of the dispute and the controversy directly and substantially in issue are the one and the same, as is clear from the following :- 14. D-4 - Natarajan has purchased the property from D-1 - Gurusami. D-6 - Lakshmi has purchased the property from Natarajan. Thus they claim title through the Judgment debtor Gurusami. The Plaintiffs Muthusami and Palaniammal are the auction purchasers in the execution proceedings, where the share of Gurusami was sold in Court auction. Thus the First Appellate Court has held that D-1 to D-4 have no right in the suit properties. The decision of the second appeal would certainly affect the decision made in O.S.No.542/2002 filed against D-2 to D-4. The dispute between the same parties does not mean actual list of parties in both the suits. But the expression "same parties" mean parties between whom the matter substantial in issue has arisen. Though D-6 - Lakshmi and D-7 - Dinesh are not parties in O.S.No.22/1989, they are successor-in-interest from D-1 Gurusami the dispute between the parties is substantially in issue in O.S.No.22/1989 and S.A.No.728/1998. On the basis of the findings of the First Appellate Court in A.S.No.100/1995, the suit O.S.No.542/2002 cannot be proceeded with. 15. As noted earlier, in A.S.No.100/1995, the learned District Judge has found that S.No.174/1 and 174/5 belong to D-5. S.No.174/2 and S.No.174/3 were found to be belonging to D-1 Gurusami, whose share the Plaintiffs have purchased in the Court auction sale. Case of the Plaintiffs is that originally, S.No.174/1 was an extent of 10.82 acres, which was later subdivided as 174/1 to 174/5. Plaintiffs claim to have purchased the undivided half share of D-1 - Gurusami and filed the suit for partition. As against the finding of the First Appellate Court, that only S.No.174/4 remains undivided between D-1 and D-5, the second appeal has been preferred. In the second appeal, the main point for consideration would be – (i)whether the parties (D-1 and D-4) have divided their properties; (ii)whether the Plaintiffs Palaniammal and Muthusami have purchased the undivided half share of D-1 – Gurusami in original S.No.174/1 – an extent 10.82 acres which was later subdivided as S.Nos.174/1 to 174/5 ? The suit O.S.No.542/2002 relates to the S.Nos.174/1 and 174/5 - suit for declaration and Permanent Injunction. The suit O.S.No.542/2002 relates to the S.Nos.174/1 and 174/5 - suit for declaration and Permanent Injunction. Certainly the decision in the second appeal would impinge upon the decision and the relief claimed in O.S.No.542/2002. Section 10 CPC is applicable when the decision in the previous suit has a direct bearing. The learned District Munsif has rightly held that Section 10 CPC is applicable and stayed the further proceedings in O.S.No.542/2002 till the disposal of the second appeal. The impugned order does not suffer from any material irregularity or jurisdictional error warranting interference. 16. Therefore, the order of the learned Additional District Munsif, Namakkal dated 27.8.2003 in I.A.No.515/ 2003 in O.S.No.542/2002 is confirmed and this revision is dismissed. In the circumstances of the case, there is no order as to costs.