1. The appellant (a creditor) filed a petition under the rules framed under Madras Act 4 of 1938 for the determination of the amount of the debt due to him and an order was passed in his favour on 9th March 1942. Against this order an appeal was filed by the debtor on 22nd June 1942. By this time the debt was in danger of becoming time barred. The creditor consequently filed a suit on 2nd July 1942 in order to save limitation. The fact of the suit having been filed was brought to the notice of the Court hearing the appeal from the declaration and that Court dismissed the appeal under Rule 8. Rule 8 provides that if at any time while an application is pending in the Court a suit is filed by the creditor for the recovery of the debt which is the subject-matter of the application the Court shall dismiss the application. It is contended in appeal that this rule refers only to the Court of first instance and to the application pending before that Court and that it will not cover the Court of Appeal and the application pending in appeal before the appellate Court. In these rules the term 'Court' is defined as ' the Court having jurisdiction under these rules.' We find no difficulty in holding that the term will include the appellate Court having jurisdiction under the rules and not merely the Court of first instance. It seems to us also that when Rule 8 speaks of an application pending in the Court, this phrase must cover not merely an application pending in the Court of first instance but also an application pending in appeal before the appellate Court. Seeing that the rule provides that when a suit is filed the proceedings in the application shall stop, there is no logical reason for applying this procedure only when the application is pending in the trial Court and not when the application is pending in appeal.
2. There is one matter only in which the order of the lower appellate Court requires modification. That order provides that the costs in the lower appellate Court shall be costs in the suit between the parties. It is pointed out that the costs in both the Courts which dealt with the application should properly be costs in the suit. Subject to this modification, the appeal is dismissed. The costs in the appeal will be costs in the suit.