Bombay High Court
Satyapal Uttamchand Chowdhary
Versus
Rukayyabai Huseinbhai Bandukwala
Decided On:

Headnote:Order 2, Rule 2 and Section l1-Maintainability of subsequent suit Different causes of action-Mortgagor filing suit challenging defendant mortgagees right to auction mortgaged property-Suit filed before auction took place-Filing of subsequent suit for declaration that auction sale was void Whether subsequent suit barred-Held, No,

       The third issue relates to the defence contention about the present• suit being barred because of the plaintiff having instituted Suit No. 4643 of 1974 in the City Civil Court at Bombay. At worded, the defence contention gives the impression of the said suit being still pending. It is conceded that the suit initiated by the plaintiff in the City Civil Court was filed before the taking place of the auction on 6-7-1974 and that the said suit was not pursued after the failure of the plaintiff to comply with the condition imposed upon him for the continuance of an ad interim injunction. Plaintiff was required to make a deposit of Rs. 10,000 by a stipulated date and as he could not comply with this condition, the ad interim injunction stood automatically vacated. Thereafter the suit was not pursued and it must have been dismissed. The cause of action in that suit was a challenge to defendant No. 1s right to auction the property and before the auction took place. As against that, the cause of action in the present suit is to get declared void the result of the auction allegedly held on 6-7-1974. The material difference in the causes of action for the two suits is enough to negative the defence contention about the non-maintainability of the present suit because of what took place in Suit No. 4643 of 1974.

       For Citation : AIR 1993 Bom 203 at p. 206