JUDGMENT

Shaw, J - This judgment will dispose of Civil Miscellaneous Appeals Nos. 125 of 1933 and 175 of 1933 as well as Civil Revision No. 289 of 1933. The R.M.P. Chettyar Firm originally filed a suit basing its claim upon a promissory note. In that suit P.S. Moideen Baba denied liability and made a counter-claim for Rs. 400. Issues were framed and the claim and counter-claim were fixed for hearing on a subsequent day. After various postponements for one reason or another including postponements for the parties to come to a settlement of their disputes amicably the Chettyar firm filed a petition asking for permission to withdraw the suit with permission to file a fresh suit on the same subject matter. Permission as prayed for was granted; subject to the payment of certain costs. Thereafter the defendant wished to go on with his counter-claim. The application to proceed with the counter-claim was dismissed.

2. The Chettyar firm had meanwhile filed another suit, this time for specific performance of contract in respect of the piece of land for which the promissory note was executed for part of the purchase money. The agreement was filed in the first suit and is therein marked as Ex. 1. A reference to that agreement will show that P.S. Moideen Baba had paid Rs. 50 as earnest money and for the balance of Rs. 800 which was the purchase price he was to execute a promissory note. The conveyance of the land was to be made, according to the terms of that agreement, when payment of the principal and interest on the promissory note which had been given had been made. Meanwhile possession of the land was given to P.S. Moideen Baba and he was to enjoy the rent. The Chettyar Firm in the second suit asked for a decree directing the defendant P.S. Moideen Baba to pay the sum of money due for principal and interest upon the promissory note after crediting what had been paid by him towards it, but only upon the plaintiff executing a deed of conveyance in favour of the defendant in respect of the same. By way of damages interest at Rs. 1.8-0 per cent per mensem was asked for on the amount from the date of suit until realization.

3. This case was considered first by one learned Township Judge who held that the suit for specific performance was not time-barred and was competent. Thereafter the case came on for hearing before another learned Township Judge. He took the view that since the defendant had executed a promissory note for payment of the balance purchase money he had completely performed his part of the contract and that he had nothing to do, but pay the promissory note debt which was another cause of action and he held that the suit for specific performance did not lie. He appears to have completely overlooked the terms contained in the agreement which was filed in Civil Regular Suit No. 239 of 1932 and which must have been produced by the defendant. This suit was taken on appeal to the District Court of Tharrawaddy which also had before it an appeal from P.S. Moideen Baba against the order dismissing his application to proceed with his counter-claim and in an order dealing with both these appeals the learned District Judge held, although on different grounds from that given by the learned Township Judge, that the trial Court was right in refusing to decree specific performance. He also held that the defendant's counter-claim could be proceeded with.

4. I am in agreement with the learned District Judge so far as his order relating to the counter-claim is concerned. The learned Judge before whom the suit upon the promissory note was allowed the counter-claim to be made in the "Written statement filed in that suit. Interpreting his action in the light of the ruling in Saya Bya v. Maung Kyaw Shun A.I.R. 1924 Rang. 346 it would appear that instead of directing the defendant to file a cross-suit he treated the counter-claim as the plaint in a cross-suit and decided to hear the two together. When the Chettyar firm withdrew the promissory note sui