JUDGMENT - Dr. Saraf B.P., J.:—An important and interesting question of law for consideration in these appeals is as to whether section 10 of the Code of Civil Procedure, 1908 (“C.P.C.”) would apply to summary suits under Order XXXVII of the Civil Procedure Code.

2. The facts of the case giving rise to this controversy, briefly stated, are as follows :

A summary suit was filed by the Indian Bank (respondent herein) against the Maharashtra State Co-operative Marketing Federation Ltd. (appellants herein) for recovery of a sum of Rs. 4,96,59,160.25. It was filed on 6th February, 1992. In the said suit, a notice of motion was taken out by the original defendants (appellants herein) for stay of the trial of the above suit in view of the fact that the matter in issue in the said suit was also directly and substantively in issue in a suit previously instituted by the appellants against the respondents in this Court numbered as Suit No. 400 of 1991 which was pending. The case of the appellants was that the matter in issue in the summary suit filed by the respondents against the appellants was directly and substantially in issue in above previously instituted suit. The contention of the appellants therefore was that the subsequent suit instituted by the respondents should be stayed pending the hearing and final disposal of the previously instituted suit.

3. On receipt of the summons for judgment in the above summary suit, the appellants also filed their affidavit-in-reply to the summons for judgment. Both the notice of motion for stay of the summary suit under section 10 of the Civil Procedure Code as well as the summons for judgment were taken up by the learned Single Judge for consideration on 24th October, 1994. The learned Single Judge, on hearing the parties, rejected the notice of motion taken out by the appellants as he was of the opinion that section 10 of the Civil Procedure Code did not apply to summary suits under Order XXXVII, Rules 2 and 3 of the Civil Procedure Code. The learned Single Judge held that section 10 of the Civil Procedure Code applies only to ordinary suits and not to summary suits under Order XXXVII of the Civil Procedure Code. The learned Single Judge also heard the summons for judgment and on such hearing directed the appellants (original defendants) to deposit a sum of rupees four crores as a condition for leave to defend the suit. Appeal No. 954 of 1994 is directed against the dismissal of the notice of motion taken out by the appellants for stay of the summary suit under section 10 of the Civil Procedure Code. Appeal No. 953 of 1994 is directed against the order of the learned Single Judge directing the appellants to deposit a sum of rupees four crores as a condition to defend the suit.

4. We have heard the learned Counsel for the parties on the question of applicability of section 10 of the Civil Procedure Code to suits under Order XXXVII of the Civil Procedure Code. The submission of the learned Counsel for the appellants is that the summary suit instituted under Order XXXVII is also a suit which is triable like any other suit except with the difference that in such a suit, the trial has to be conducted in accordance with the special procedure laid down in Rules 2 to 7, Order XXXVII. It is contended that in that view of the matter, provisions of section 10 will be applicable to summary suits under Order XXXVII with the same force as they are applicable to other suits. Reliance is placed in support of this contention on a Division Bench decision of this Court in (Indian Express v. Basumati Pvt. Ltd.,)1 A.I.R. 1969 Bom. 40, where it was held that a defendant in a summary suit under Order XXXVII is entitled to apply to the Court for stay of the subsequently instituted suit. Our attention was also drawn to the object and scheme of Order XXXVII of the Civil Procedure Code in support of the contention that Order XXXVII contemplates trial of a suit and a judgment in pursuance thereof. The contention of the lea

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