Decided on March 31,1955

HAIDARALI Respondents


Nevaskar, J. - (1.) THESE two revision Petitions arise out of two different suits brought by mortgagees Haidarali and other against Vishwanath and Ganesh for enforcement of their mortgage securities on the basis of mortgage transactions entered into between them. Both the suits were filed on the same date. One of these suits was numbered 151 of 1950 and was filed in Civil Judge's Court at Indore. This was later renumbered as No. 27 of 1952. The second suit was filed in District Court and bore No. 8 of 1950.
(2.) IN the suit filed in the District Court one of the contentions raised on behalf of the Defendants was that the suit was barred by Section 67A of Transfer of Property Act. It was also contended that suit, was barred by the provisions of Order 2, Code of Civil Procedure. On this, an application was moved on behalf of the Plaintiffs for transfer of the suit in Civil Judge's Court to the District Court with a view that the two suits might be consolidated and tried as a single suit. This application was rejected by the trial Court and a revision petition filed against that order in the High Court was dismissed. Thereupon the Plaintiffs applied for withdrawal of both the suits under Order 23, Rule 1, Code of Civil Procedure on the ground that the suits were likely to fail by reason of a formal defect and that there was other sufficient cause within the meaning of that Rule. These applications for withdrawal were opposed on behalf of the Defendants. The principal grounds of opposition were: First The defects in these suits were not formal but were substantial and conditions for the application of Order 23 Rule 1(2)(a) were not present in them. Second There were no sufficient grounds justifying withdrawal of these two suits within the meaning of Order 23 Rule 1(2)((b), Code of Civil Procedure. Third The petitions for withdrawal were not signed by all the Plaintiffs. Fourth The suit in the District Court is barred by Order 2 Rule 2, Code of Civil Procedure and it could not be permitted to be withdrawn. All these contentions were overruled by both the Courts and each of the suits was allowed to be withdrawn.
(3.) THE Defendants have preferred separate revision petitions against each of these orders in two separate suits.;

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