The provisions of Section 10 CPC are mandatory and the court does not have the discretion to stay a suit under Section 151 CPC when it is unable to act under Section 10 CPC.

ORDER:- The order under revision is patently wrong and without jurisdiction and has to be set aside.

2. Short facts are as follows:-

Petitioner and his wife brought a suit against the respondents (Sp. Civil Suit No. 8/74) before the Court of Civil Judge, Senior Division of Margao for partition of the property as described in para one of the plaint. According to the plaint the property was held in common by the parties to the suit and a private deed of partition had been drawn up before the ex-Notary Public of Margao on 13-4-64. Plaintiffs prayed that the property be partitioned by metes and bounds in terms of the contract between the parties vide partition deed dated 13-4-1964.

3. The defence of the respondents/ defendants was that the property was not a joint property belonging to the parties as alleged in the plaint. According to them the property belonged exclusively to the defendants 1 and 2 because though the sale deed stood in the name of their father, the real purchaser was the defendant No. 1 alone.

4. Issues on these pleadings were framed and they are at Exh. 9 of the record.

5. Respondents. No. 1-2/defendants subsequently filed a suit against the plaintiffs and two others (Sp. Civil Suit No. 41/74) wherein they sought a declaration that the property (which was the subject matter of the earlier suit) belonged to them and had been purchased by respondent No. 1 though the deed was obtained in the name of his father and mother. Respondents Nos. 1 and 2 prayed further that the partition deed dated 13-4-1964 be declared null and void.

6. On 10-9-1974 respondents 1 and 2 filed an application to the effect that the previously instituted suit (No. 8/74) be stayed because "if the previously instituted suit is decreed there will be no cause of action in the present suit.

7. The learned judge in his impugned order held that the suit could not be stayed under Section 10 of the C. P. C. but he exercised powers under Section 151, Code of Civil Procedure and stayed the earlier suit till the decision of the subsequent suit (Sp. Civil Suit No. 41/74).

8. Perusal of the pleadings in both the suits, unmistakably shows that in the subsequent suit the matter in issue was also directly and substantially in issue in the previously instituted suit between the same parties. The procedure under Section 10 of the C. P. C. is mandatory and bars the Court from proceeding with the trial of the subsequent suit if the conditions mentioned therein are present. Nothing was left for the discretion of the learned Civil judge, for exercise of his power under Section 151 Code of Civil Procedure because all the requisite conditions to attract Section 10 C. P. C. were present. It is clear that the Court of Civil Judge Senior Division had pecuniary jurisdiction to decide both the suits and therefore there was no reason why the learned Civil Judge should not have acted under Section 10 C. P. C. The case of Banshidhar v. Laxmiprasad AIR 1966 Ori 53 could not help the respondents because the facts were clearly distinguishable. In that case the Court where the first suit was pending did not have pecuniary jurisdiction to decide the issue which was raised in a suit filed subsequently. But if it is canvassed that this case is an authority of the proposition that it is purely the discretion of the Court to act under Section 151 C. P. C. when it is unable to act under Section 10 C. P. C., I respectfully disagree with this proposition. I will refer to the observation of the Supreme Court in Manoharlal v. Hiralal 1962 Supp I SCR 450 at p. 470 = (AIR 1962 SC 527 at p. 536) where it has been stated as follows:-

"The suit at Indore which had been instituted later, could be stayed in view of Section 10 of the Code. The provisions of that section are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the Code of Ci