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Anukul Chandra Manna Vs. Debendra Nath Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1947Cal386
AppellantAnukul Chandra Manna
RespondentDebendra Nath Dutta and ors.
Excerpt:
- .....in this ease even if he had desired to do so. jurisdiction is given by section 10, civil p.c., to stay suits. a proceeding under section 83, t.p. act is not a suit and that is clear from the terms of the section itself. the section provides that a person who is entitled to bring a suit for redemption may make an application under that section which is a section providing for a very summary procedure. it appears to me that there is no power under section 10, civil p.c. to stay such applications, and, that being so, the munsif was right in refusing a stay though he did not give in this ease the proper ground for so doing. in any event it appears to me that the petitioner will not be prejudiced even if this application under section 83, t.p. act proceeds. it is unnecessary to pursue the.....
Judgment:
ORDER

Harries, C.J.

1. This is a petition for revision of an order of a learned Munsif refusing to stay an application under Section 83, T.P. Act.

2. On 7th November 1941, opposite parties 2-and 3 executed an anomalous mortgage in favour of the petitioner under which the petitioner obtained possession of the property. On 1st June 1945, opposite parties 2 and 3 executed an agreement for sale of their interest in the, mortgaged property to the petitioner, that is, they agreed to sell the equity of redemption. On 27th June 1945, the opposite parties executed a sale deed of the equity of redemption in favour of opposite party 1. On 2nd October 1945 the petitioner instituted a suit against opposite parties 2 and 3 for specific performance of the agreement of sale of the equity of redemption dated 1st June 1945. On 27th November 1945, opposite party 1 made an application under Section 83, T.P. Act, for redemption of the mortgage of 7th November 1941.

3. The petitioner who, as I have said, had already instituted a suit for specific performance, applied in the Court of the learned Munsif for an order staying the petition under Section 83, T.P. Act. The learned Munsif was of opinion that the issues involved in the two litigations were different and he refused to grant a stay.

4. In my view the learned Munsif had no jurisdiction to grant a stay in this ease even if he had desired to do so. Jurisdiction is given by Section 10, Civil P.C., to stay suits. A proceeding under Section 83, T.P. Act is not a suit and that is clear from the terms of the section itself. The section provides that a person who is entitled to bring a suit for redemption may make an application under that section which is a section providing for a very summary procedure. It appears to me that there is no power under Section 10, Civil P.C. to stay such applications, and, that being so, the Munsif was right in refusing a stay though he did not give in this ease the proper ground for so doing. In any event it appears to me that the petitioner will not be prejudiced even if this application under Section 83, T.P. Act proceeds. It is unnecessary to pursue the matter any further because I am satisfied that the Munsif could not make the order which he was asked to do.

5. In the result, therefore, this petition fails and is dismissed, This Rule is discharged with costs.


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