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2017 DIGILAW 2824 (RAJ)

GOTAM AND COMPANY v. ADDITIONAL CIVIL JUDGE

2017-12-19

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. The present writ petition is directed against the order dated 17.11.2017 passed by learned Additional Civil Judge(Sr. DN.) No.1, Chittorgarh (hereinafter referred to as 'the Trial Court'). 2. The facts in nutshell giving rise to the present writ petition are that in a suit filed by the plaintiff, against the present petitioner as back as in the year 1981, the petitioner moved an application on 20.09.2017, under Section 10 of the Code of Civil Procedure, inter alia contending that the suit proceedings in question be kept in abeyance till decision of the appeal pending in High Court, against the judgment and decree dated 09.03.2000 duly affirmed by the Additional District Judge, Chittorgarh, vide its order dated 21.03.2006. 3. The aforesaid application filed by the petitioner came to be rejected by the learned Trial Court vide its order dated 17.11.2017, inter alia observing that the present suit proceedings have been instituted on 02.01.1981, whereas the appeal pending before High Court emanated from a suit instituted on 30.03.1981, subsequent to the present suit proceedings. While relying upon the plain language of Section 10 of the Code of Civil Procedure, learned Trial Court rejected petitioners' application vide order impugned. 4. Mr. Sanjay Mathur assailing the order dated 17.11.2017 submitted that the language of Section 10 of the Code of Civil Procedure is required to be read in conjunction with provisions of Section 11 of the Code of Civil Procedure. 5. He further submitted that the appeal is continuation of the suit proceedings, for which the subject proceedings are required to be stayed till the matter is finally adjudicated by the High Court, in the appeal said to be pending against the judgment dated 21.03.2006. 6. Heard learned counsel for the petitioners and considered the material available on record. 7. The undisputed facts obtaining in the present case are that the other suit had been filed on 30.03.1981, whereas the present suit, proceedings whereof have been sought to be stayed, had been filed on 02.01.1981. 8. The present suit had admittedly been instituted prior in time, as such the provision of the Section 10 of the Code of Civil Procedure do not apply to it, as the same are applicable to the subsequent suit. As such proceedings in the present suit, cannot be stayed on account of the pendency of the appeal, emanating from the subsequent suit. As such proceedings in the present suit, cannot be stayed on account of the pendency of the appeal, emanating from the subsequent suit. That apart, this Court finds itself unable to accept the contention of Mr. Mathur that as appeal is a continuation of suit proceedings and till the appeal is decided, the suit proceedings are required to be stayed. Acceptance of such contentions or acceding to such request would result in travesty of justice, as finalisation of the appeal may take a long time. Section 10 of the Code of Civil Procedure provides for stay of the suit proceedings, which by any stretch of imagination can not include, appellate proceedings. 9. In view of the aforesaid discussions, this Court does not find any infirmity or error in the judgment under challenge, for which the writ petition is dismissed.