Decided on June 26,1970



- (1.) THIS Rule raises a short question. It is directed against an order of the learned trial Judge, granting the defendant-petitioner's prayer for stay of the instant suit pending the hearing of a previously instituted suit on condition that he deposits Rs. 5000/- in cash in the court below within a certain time. The learned trial Judge proceeded to deal with the matter apparently under section 10 of the Code of Civil Procedure and expressed the view that stay in the present case should be granted under that section. He also observed that stay under that section was mandatory and for such a stay all the essential pre-requisites were present in the instant case. He, however, was of the view that, even for a stay under section 10 of the Code of Civil Procedure, the court was entitled to direct deposit of some amount or payment of some cost and, upon that view, he made the present impugned order.
(2.) IN our view, the learned trial judge has not made the correct approach to the problem before him. If it was a matter of stay under section 10 of the Code of Civil Procedure, the section being mandatory, as observed by the learned trial Judge himself, it was not open to him to impose any condition for the granting of the stay. If however, the matter did not come under section 10 of the Code of Civil procedure, the stay was to be granted if at all, only on the footing that it was an appropriate case for stay under section 151 of the Code of Civil Procedure, and, in such circumstances, the court was entitled to impose a condition for granting such stay. In the instant case, as we find from the materials before us, the subject-matter of the two suits could not be said to be identical, one being suit for mesne profits, in which the subject matter was the claim for money and the other a title suit, having for its subject matter the immovable property in question. It was thus clearly not a case under section 10 of the Code of Civil Procedure so as to oblige the Court to grant stay unconditionally, vide (1) Bepin Behari majumdar and ors. v. Jogendra Chandra ghosh and ors. reported in 24 C. L. J. 514; (2) Chowdhuri Jamini Nath Mallick v. Midnapore Zemindary Co. , reported in 27 C. W. N. 772 and (3) Jugometal Trg. Republic v. Rungle and Sons Pr. Ltd. reported in A. I. R. 1966 Calcutta 382 : 70 C. W. N. 375. The instant case, however, is pre-eminently a case for stay under section 151 of the Code of Civil procedure and, as already stated, in such a case the court is entitled to impose a condition and, considering the circumstances before us, we think that, 115. the instant case, the petitioner, before having the advantage of the stay, prayed for by him, must furnish, in the court below, to the satisfaction of that court, security for a sum of rs. 5,000/- towards the opposite party's claim in the instant proceeding. That security must be furnished within two months from the date of notice of arrival of the records in the court below. In default, this Rule will stand discharged and the petitioner's application for stay would stand rejected. If, however, the above security is furnished, as directed hereinbefore, this Rule will be made absolute and the petitioner's application for stay would be allowed and the present suit would remain stayed until disposal of the connected title suit No. 65 of 1968 of the Additional Court of the Subordinate Judge, Bankura, as mentioned in the learned trial Judge's order. The hearing of the latter suit, however, will be expedited as much as possible. There will be no order as to costs in this Rule. Let the records go down as quickly as possible.;

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