B.S. Patil, J.

Application filed by the petitioner under Section 10 read with Section 11 and Section 151 of the Code of Civil Procedure (for short 'CPC) seeking stay of the proceedings in O.S. No. 178/2006 having been dismissed vide order dated 25.09.2012 by the I Additional Senior Civil Judge, Bijapur, petitioner who is the 1st defendant in the suit has filed this petition.

2. Petitioner herein is the 1st defendant in O.S. No. 178/2006 filed by the 1 respondent herein seeking a decree for specific performance of the contract dated 06.04.1998 whereunder, the petitioner is stated to have agreed to sell the property in question in favour of the plaintiff/respondent No.1. The suit is filed seeking a direction to defendant No.1 to execute a registered sale deed in respect of the suit land with a further direction to the 2nd defendant/respondent No.2 herein to join him in execution and registration of the sale deed. This suit for specific performance came to be instituted on 13.06.2006. The present petitioner has resisted the suit. The trial of the suit is completed and the matter is at the stage of conclusion of the arguments. At this stage, the 1st defendant filed I.A. No.37 with the following prayer:

"For the reasons contained in the accompanying affidavit, the applicant/1st defendant prays that, this Hon'ble Court may be pleased to stay further proceedings in the above suit pending disposal of RFA No. 6012/2012 flied by the applicant before the High Court of Karnataka - Circuit Bench at Gulbarga, against the judgment dated 05-12-2011, passed by this Hon'ble Court in O.S. No.88/2007, in the interest of justice and equity."

3. It is necessary to notice here that O.S. No. 88/2007, which had been instituted on 06.03.2007 subsequent to the suit O.S. No. 178/2006, is filed by the brothers of the 1st defendant for partition and separate possession of the joint family properties including the property, which is the subject matter of the suit for specific performance. The 1st respondent/plaintiff in the present suit had got himself impleaded as 11th defendant in O.S. No. 88/2007 and at his instance, an issue is framed at additional issue No.1 which is re-cast to read as,

"Whether defendant No.11 proves that he is having interest over suit properties?"

On the said issue, a finding has been recorded holding that defendant No.1 had interest in one of the suit properties, which was the subject matter of the agreement of sale and further that the very suit O.S. No. 88/2007 filed by the brothers of the petitioner herein has been partly decreed excluding the suit schedule property (subject matter of the agreement of sale). The 1st defendant/petitioner herein has preferred a Regular First Appeal before this Court in RFA No. 6012/2012 which is pending consideration, wherein an interim order of stay of the judgment challenged has been granted. In this background, he requested the Trial Court not to proceed with the case in O.S. No.178/2006 and to await the decision to be rendered by this Court in the Regular First Appeal filed by the 1st defendant/petitioner herein.

4. The Trial Court has dismissed this application holding that no valid grounds had been made out by the petitioner/defendant No.1 for stay of the suit in terms of the provisions contained under Section 10 CPC.

5. Learned Senior Counsel Sri. S.M. Chandrashekhar appearing for the writ petitioner contends that though the suit O.S. No.178/2006 filed for specific performance of the agreement of sale is earlier in point of time, as the suit for partition instituted in O.S. No.88/2007 has been subsequently disposed of and the issue regarding the right of the 1st defendant over the suit schedule property in O.S. No. 178/2006 has been answered, the said finding has a direct bearing on the dispute raised in O.S. No. 178/2006. It is further submitted that as long as the finding on additional issue No.1 in O.S. No.88/2007 is the subject matter of appeal in RFA No.6012/2012, it is just and necessary