P.B. MUKHARJI, J.

( 1 ) ON this notice of motion taken out by the defendant Company, the application is made to stay the suit and all proceedings herein until the plaintiff has exhausted all his available remedies against the mortgaged property or until he abandons his mortgage security. The application is made under Section 68 (2), T. P. Act read with Sub-section (1) and Clause (a) thereof.

( 2 ) IN order to appreciate the point advanced by the applicant and in order to determine the point raised, it is necessary to refer to the nature of pleadings in this suit which the applicant wants to stay.

( 3 ) THIS suit was instituted by the plaintiff on or about 9th January 1952. In para. 1 of the plaint the claim against the defendant company is made only on the basis of its alleged liability as drawer of a Promissory Note dated 11th January 1949 for the sum of Rs. 40,000/- carrying interest at the rate of 6 per cent, per annum payable on demand to the plaintiff or order. That is the only claim made in the plaint. In para 3 of the plaint the plaintiff pleads that the defendant also created an equitable mortgage by deposit of title deeds in respect of a cinema house situate at Rajpur outside the jurisdiction of this Court but that is only pleaded to ask for leave under Order 2. Rule 2, C. P. C. to file a separate suit to enforce the mortgage if and when necessary. In this suit the plaintiff asks for a decree for a sum of Rs. 47,200/- inclusive of interest due on the promissory note. That is the only decree claimed by the plaintiff on this plaint.

( 4 ) IN the written statement the defendant company takes the defence of complete denial of the promissory note, denying that it drew the promissory note or it authorised the drawing of the promissory note. What is more the defendant company pleads further to deny the creation of any equitable mortgage and has particularly denied that it deposited or authorised anybody to deposit the title deeds in respect of the cinema house with intent to create any security. The written statement proceeds in the defence by the submission that if it is held contrary to the pleading that there has been a mortgage then this Court should stay all proceedings in this suit until the plaintiff has exhausted his remedy against the mortgaged property or abandons his claim for the mortgage security. Even a momentary reflection will show that this submission is pointless because this Court cannot determine the validity of the mortgage in this suit in which the mortgage is not in issue and which suit again the applicant himself want's to stay. The applicant, therefore, is in the paradox of wanting to stay this suit and at the same time wants this Court to determine in this suit the validity of the mortgage first. The effect of this paradox will be of importance when I discuss the question of discretion under Section 68 (2), T. P, Act,

( 5 ) THE defendant now applies to stay this suit under Section 68 (2), T. P. Act on these materials. The only ground on which the application is made is that this suit is one under Section 68 (1) (a), T. P. Act. No question under Clauses (b), (c) or (d) of Section 68 (1), Transfer of Property Act is involved in this case. The defendant company can only succeed if it satisfies in the first instance that it comes within the meaning of Section 63 (1) (a), T. P. Act and secondly if it satisfies me that 1 would, in my discretion, given to the under Sub-section (2) of that section, stay the proceedings.

( 6 ) I propose to deal first with the argument advanced on behalf of the applicant that the requirements of Section 68 (1) (a ). T. P. Act are satisfied in this case. It is argued that this is a case where the mortgagor company has bound itself to repay the mortgage-money and therefore it comes within the meaning of this section. This argument raises a very important question of law and requires careful analysis.

( 7 ) ON behalf of the respondent some argument was advanced that an equ

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