BHANDARI, J. - (1.) THIS is a civil second appeal in a money suit and arises under the following circumstances.
(2.) TWO suits were filed by the plaintiff respondent Bajranglal in the Court of Munsif, Didwana. In both the suits the allegation of the plaintiff was that the defendant borrowed Rs. 5,000/- from the plaintiff on 2-T-52 and executed a bond agreeing to pay the aforesaid amount with interest at the rate of 6% per annum in the following instalments: - 1. Rs. 1700/- with interest on Phagun Sud 15, Smt. 2008. 2. Rs. 1100/- with interest on Vaishak Sud 15, Smt. 2009. 3. Rs. 1100/- with interest on Asoj Sud 15, Smt. 2009. 4. Rs. 1100/- with interest on Posh Sud 15, Smt. 2009. The plaintiff filed a suit for the recovery of the first instalment on 29. 4. 51 (suit No. 160 of 1952 ). He also brought another suit for the recovery of :he second instalment on 31. 5. 52 (suit No. 190 of 1952 ). The defendant admitted the execution of the bond in both the suits, but denied having received any consideration. Issues were framed in both the suit. In suit No. 160 of 1952 aft application was made by the defendant that this suit may be consolidated with suit No. 190 of 1952 and on 23. 9. 52 the learned Munsif ordered that as the parties and the issues were the same in both the cases, civil suit No. 160 of 1952 is to be consolidated with civil suit No. 190 of 1952. Evidence was recorded in civil suit No. 190 of 1952 and the learned Munsif decided both the suits by a common judgment holding that the consideration for the bond was not paid by the plaintiff to the defendant. He, therefore, ordered the suits to be dismissed on 30. 10. 53. On that very day he recorded in the proceedings of suit No. 160 of 1952 that as the judgment has been pronounced in suit No. 190 of 1952, this suit is dismissed. In both the suits two decrees were prepared separately. The plaintiff filed one appeal on 12. 1. 54 against the dismissal of both the suits and with the memorandum of appeal submitted a copy of the decree prepared in suit No. 190 of 1952. Later on, an application was filed by the plaintiff submitting the copy of the decree prepared in suit No. 160 of 1952 and also prayed that if it be considered necessary the benefit of sec. 5 of the Limitation Act be granted to him and the delay in filing the copy of the decree prepared in suit No. 160 of 1952 be condoned. The learned civil Judge, Merta, in whose court the appeal was filed held on merits that the defendant has failed to prove that the bond was without consideration. He also held that as both the suits have been consolidated, the consolidated proceedings could be disposed of by a single judgment and there was no necessity for the preparation of two decrees. He further held that simply because the court thought it necessary to draw up two decrees, it cannot be said that plaintiff could not have filed one appeal against the judgment of the learned Munsif dismissing both the suits. He also observed that in the memorandum of appeal, the plaintiff had prayed for setting aside the judgment and decree passed in both the suits. In his opinion, if one composite decree was not drawn up, it was no fault of plaintiff and his appeal was regularly presented. In this view of the matter, he decreed both the suits of the plaintiff in full. The defendant has filed this second appeal to this Court challenging the judgment and decree passed by the learned Civil Judge, Merta. Learned counsel for the appellant has canvassed the following two legal points in support of his appeal: - 1. That the plaintiff had not filed any appeal in the court of Civil Judge, Merta, against the judgment and decree passed by the Munsif, Didwana in suit No. 160 of 1952 and as such the learned Civil Judge could not upset the order of dismissal of that suit; and 2. That as the judgment and decree in that suit have become final on 30. 10. 53, it operated as res judicata in the appeal filed by the plaintiff in suit No. 190 of 1952 and that appeal should have also been dismissed by the learned Civil Judge on that plea. On facts it is urged that the evidence of the plaintiff himself shows that no consideration had been passed between the parties and the bond was executed without consideration. On behalf of the plaintiff-respondent, it is urged that both the suits filed by the plaintiff were consolidated and there was one common judgment, but the trial court drew up two decrees which should not have been done. The plaintiff had no knowledge that the two decrees have been drawn up and he obtained a copy of the decree drawn in the suit in which the proceedings were taken and filed it along with the memorandum of appeal before the Civil Judge, Merta. As soon as he became aware that there was another decree in suit No. 160 of 1952 he obtained the copy thereof and filed it before the Civil judge. He has argued that he was entitled to prefer one appeal against the judgment and decree of the learned Civil Judge dismissing both the suits; and he cannot be held responsible if the learned Civil Judge failed to draw up one single decree and instead two decrees were drawn up separately in both the suits. It is further urged that if this contention is accepted, there arises no question of res judicata. If it be held that his appeal was only against the judgment and decree passed in suit No. 190 of 1952, the judgment in suit No. 160 of 1952 cannot be held as res judicata. For this he relied on the decision of this Court in Sukhlal Vs. Deepchand (1 ). It has further been argued that so far as the merits are con-cerned, the finding of fact arrived at by the learned Civil Judge was final and cannot be agitated in this appeal. He has also argued that the defendant has failed to prove want of consideration for the bond Ex. P. 1. I shall first take up into consideration the points of law involved in this appeal. In the Code of Civil Procedure there is no specific provision for consolidation of proceedings, but it may be taken to be a settled principle of law that the courts are competent to consolidate proceedings in the exercise of their inherent powers. There is a provision under sec. 10 of the Code of Civil Procedure for stay of suits. Several conditions must be fulfilled before stay can be granted under sec. 10, but cases have arisen in which it was thought necessary to grant stay in the exercise of inherent powers under the Code. The purpose of consolidating the suits or staying the proceedings of one suit pending continuance of the proceedings in another suit is that there may not be unnecessary waste of time of a court of law in determining the rights of the parties in respect of the subject-matter in dispute by taking proceedings twice over and thus leading to the multiplicity of the proceedings and inconvenience to the parties. Both for the purpose of stay and consolidation therefore there are certain conditions to be fulfilled. Broadly these conditions are that real contesting parties must be the same and the determination of rights of the parties in one suit must be intimately connected with the determination of the rights of the parties in another suit. Some more stringent conditions are laid down in sec. 10 which provides for stay of suits. However, consolidation and stay have a common purpose to fulfil and are, therefore, akin to each other in many respects. There are, however, some points of distinction. In the case of stay the two proceedings remain separate from start to finish while in the case of consolidation once the Court has' ordered consolidation, there is amalgamation of two suits in one suit horn the date of the order of consolidation and they are to be decided as if there were one suit. Sometimes consolidation of action is taken in its wider sense as including stay. In this connection, definition of "consolidation of actions" given in Corpus Juris Vol. 1, Art. 308 may be usefully noticed: "consolidation of actions has been defined as the combination of several actions into one; and also as a direction that one of several pending actions involving the same facts and issues shall be tried, the result of the trial to be an adjudication of all the causes. 'i he definitions usually given embrace, in substance, both of the definitions just stated; but it is apparent that the two entirely distinct methods of procedure, the first involving an actual consolidation, where two or more actions are united into one and tried as such, and judgment rendered accordingly in all but one involving a stay of proceedings in all but one of the cases, which is tried, and the adjudication in that case made decisive of the others. " In this case the order of Munsif, Didwana dated 23. 9. 52 passed in suit no. 160 of 1952 is clear that he meant to consolidate suit no. 160 of 1952 with suit no. 190 of 1952 in the real sense of the term, that is, the proceedings in suit no. 160 of 1952 were not merely stayed but that suit became part and parcel of suit no. 190 of 1952. Both the suits were disposed of by one common judgment and when there was a complete consolidation in the sense that both the suits became one, there was no necessity of preparation of two separate decrees in those suits. Reference in this connection may be made to a decision of the Nagpur High Court in Manohar Vinayak Vs. Laxman Anandrao Deshmukh (2 ). In that case it has been observed that after consolidation there is only one case, and the suit consolidated has no independent existence for trial. Both the suits should be tried in one trial and should be disposed of by one judgment and decree. The fact that two decrees are drawn up shows only an irregularity in following a correct and an ideal procedure. The observations of a Division Bench of this Court in Sukhlal Vs. Deepchand (1), are to the effect that in case of consolidation of suits, there ought to be, in reality, only one decree in both the suits so as to avoid all confusion. There was thus no necessity for preparation of two separate decrees in both the suits. The learned [munsif should have prepared only one decree and had this been done there would have been no confusion. However, as the main judgment was delivered in suit No. 190 of 1952, the plaintiff obtained the copies of the judgment and decree in that case and presented the appeal for both the instalments for which he had filed two separate suits. Had the decree been in order, there would have been no difficulty, but the decree that was drawn only partially represented the judgment of the learned Civil Judge and was not a full and formal expression of that judgment. In other words, the decree was incomplete. This was not due to any fault of the plaintiff. It cannot be said in this case that the plaintiff failed to file the copy of the decree and his appeal was therefore defective on that ground. The only flaw that can be pointed out is that the copy of the decree, which was filed, was in some respects incomplete, but, as already pointed out this was not due to any short-coming on his part. Thus the appeal filed by the plaintiff before the learned Civil Judge, Merta, was a proper appeal and in order to fulfil any lacuna he also filed a supplementary copy of the decree which has been prepared in suit Nos 160 of 1952. The appeal presented by the plaintiff before the Civil Judge was therefore in accordance with law and it was not necessary for him to file two appeals as was contended by the learned counsel for the appellant. Learned counsel for the appellant has, however, urged that the order of consolidation passed by the! Munsif was bad inasmuch as by consolidating both the suits in one the valuation of this consolidated suit was beyond the pecuniary jurisdiction of the learned Munsif and he could not have tried this consolidated suit. In this connection, Art. 312 of Corpus Juris is quoted, where the law is stated in these terms: - "a consolidation of actions should not be made if it would have the effect of ousting the jurisdiction of the court by making the aggre gate amount in controversy exceed the jurisdictional limit of such court. " Under the provision of the Code of Civil Procedure, a suit, which has been properly instituted in a competent] court, shall be deemed to have been validly instituted till it is decided. If during the course of proceedings it becomes necessary that there must be consolidation of two or more actions it cannot be said that the institution of any of the suits so consolidated had become bad and the Court cannot be deemed to be incompetent to exercise jurisdiction if the combined valuation of the suits consolidated is beyond the pecuniary limit of the court. The object of consolidation is to avoid multiplicity of proceedings and to prevent delay and avoid unnecessary costs and expenses. All these matters are of procedure for the determination of the points in controversy between the parties by a court of law and do not in any way affect the jurisdiction of the Court. [by mere consolidation it cannot be said that the court has ceased to have jurisdiction if the combined valuation of the suit exceeds the pecuniary jurisdiction of the court trying them. It is difficult to understand that when the court could have dealt with each suit separately without any objection, then, if, for the sake of convenience to the parties as well as to the court, common proceedings are ordered to be taken in both the suits it cannot be done. The passage quoted from Art. 312 of Corpus Juris " speaks of the indivisibility of consolidation in cases when the aggregate amount exceeds the pecuniary limit of the court. It does not say anything about the consequences of such a consolidation, if it has taken place or that the judgment and decree pronounced by that court in such a case are void or ineffective. This contention of the learned counsel for the appellant has, therefore, no force. In my opinion, both the suits were rightly consolidated and they could be tried by the learned Munsif, Didwana and he was competent to try the consolidated suits. I am further of the opinion that the plaintiff's appeal to the Civil Judge was not defective on account of any fault of his and if there was any defect it was removed by filing the copy of the decree prepared in suit no. 160 of 1952. Thus this legal argument urged by the learned counsel for the appellant has no force. The second law point does not arise for decision.
(3.) COMING to the merits of the case, the lower appellate court has held that the bond is a registered bond duly signed and executed by the defendant. The defendant is a man of wide business experience. It was for him to show that the registered bond executed by him was without consideration. The lower appellate court has held that the story given by him for the execution of the bond is false. His version is that it was a sham transaction only to benefit the plaintiff who was in need of exhibiting his solvency to his creditors who were forcing him to pay the money due to them and they would have felt satisfied if they came to know that the plaintiff holds a bond of Rs. 5,000/- in his favour from such a solvent man as the defendant. This story on the face of it is highly improbable and the evidence on record is found to be totally false. It was for the defendant to prove that the bond was without consideration and according to the judgment of the lower appellate court he has failed to do so and that finding is final in second appeal. Learned counsel has argued with some emphasis that the evidence of the plaintiff himself shows that the case set up by the plaintiff for proving consideration was hardly believable. The lower appellate court has believed it after going through the evidence and it is not for me to upset that view in this second appeal. As a result of the aforesaid discussion, the appeal has got no force and it is dismissed with costs. Learned counsel for the appellant has prayed for leave to appeal to a Division Bench. It is not a fit case for granting leave to appeal. Leave to appeal is refused. . ;