Section 10 cpc
Vijay Kumar
(Querist) 27 April 2012
This query is : Resolved
A document (money receipt) was declared to be genuine in a declaratory suit decreed ex parte. An appeal has been preferred against the decree wherein the document has been challenged.
The opponent party has filed a civil suit for recovery on the basis of above said money receipt.
Can the subsequent recovery suit be stayed u/s 10 of CPC in such a situation?
adv. rajeev ( rajoo )
(Expert) 27 April 2012
Yes. Because document itself is challenged, You can file an application to stay the suit till the disposal of an Appeal, moreover it is subsequent suit.
Devajyoti Barman
(Expert) 27 April 2012
I do not think the subsequent is to be stayed.
The reliefs prayed for in both the suits are of separate nature.
May be bar under Order 2 Rule 2 of CPC r/w 34 of Specific relief Act may come into play.
Nadeem Qureshi
(Expert) 27 April 2012
Dear Querist
if the conditions are fulfill, only then the stay may be grant under this section
10. Stay of suit.
No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 1[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by 2[the Central Government] 3[***] and having like jurisdiction, or before 4[the Supreme Court].
Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in 1[India] from trying a suit founded on the same cause of action.
COMMENTS
(i) The language of section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute; National Institute of Mental Health and Neuro-Sciences v. C. Parmeshwara, AIR 2005 SC 242.
(ii) Two suits—Between same parties—Involving same subject‑matter and same questions—Held, subsequent suit should be stayed; Radhika Konel Parekh v. Konel Parekh, AIR 1993 Mad 90: (1993) LW 159: (1993) 1 Mad LJ 163.
feel free to call
N.K.Assumi
(Expert) 27 April 2012
I am of the view that pending disposal of appeal the subsequent suit hat to be stayed as pointed out by rajeev: even otherwise any finding of the Appeal by the higher court on the subject matter will rendered the subsequent suit futile.
Adv.R.P.Chugh
(Expert) 27 April 2012
Dear Mr.Kumar,
In absence of appellate court staying the operation of decree...The Suit for recovery is perfectly maintainable, and may go on simultaneously. Till the appellate court overturns the decree the trial court decree holds good and here analogy may be drawn of an decree and it's execution, in effect this recovery suit is execution of the earlier order, and would go on in absence of specific direction of stay.
Shonee Kapoor
(Expert) 27 April 2012
Nothing left to be added.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 27 April 2012
No is my straight answer to your question.
But my question is that why not relief for recovery was sought for in the earlier declaratory suit it self.What reply you have in this regard in answer to order 2 rule 2 of CPC???????????
Vijay Kumar
(Querist) 27 April 2012
Respected sirs
During the pendency of earlier suit, both parties reached a compromise as per which a sum of money was to be paid by plaintiffs to defendants and the plaintiffs would become entitle to suit land.
After compromise,defendants became lax and absented from the suit proceedings. Plaintiffs prepared a false & fabricated money receipt.They tendered compromise and forged receipt in ex parte evidence; and got the ex parte decree.
Now defendants have preferred appeal against the ex parte order and decree.
Plaintiffs filed recovery suit.
Money Receipt is directly & substantially in issue in appeal and also in subsequent recovery suit.
Kindly enlighten.
