Chellammal alias Parvathy Animal vs Parameswaran Namboodiri

Nayar, J.—Before deciding whether or not the suit is liable to be stayed under the court has to find whether the transaction in question is a mortgage or a lease and that is the very matter covered by issue (1). I can see no objection to this issue being tried as a preliminary issue and the Court deciding on the basis of its finding therein whether the further trial should proceed or not. In fact, this course was commended by a Division Bench of this court in 1958 K. L. T. 1049. I see nothing to the contrary in the order of Varadaraja Iyengar J., in C. R. P. 756/57 in this same case where the 6th defendant came up on revision from the finding on issue (1) (which was heard as a preliminary issue) that the transaction was a mortgage, the necessary consequence of this finding being that the trial could proceed. What the learned Judge there said was that it did not appear that issue (1) was taken up for preliminary trial for the limited purpose of deciding whether or not the suit should be stayed under Act 1/1957 and that that being so a preliminary trial in the normal course, apart from the question of stay, should have embraced issues (2) and (6) which are intimately connected with issue (1). The finding itself was set aside because both parties were dissatisfied with the particular manner of the disposal. His Lordship then went on to say that it was open to the trial court to give a tentative finding on the question (one which apparently would not be binding in the suit) merely for the purpose of deciding the question of stay and indicated his preference for such a procedure by observing that piece-meal trial was not desirable. This, of course, does not mean that the court can proceed to try the entire suit without first deciding whether it is liable to be stayed or not and, in deciding to do so, I am afraid, the lower court has misconstrued Mr. Justice Varadaraja Iyengar''s order.

I set aside the order of the lower court dismissing the petitioner-sixth defendant''s application u/s 4 of Act I of 1957 without at all going into the question whether the suit was liable to be stayed or not. I direct it to dispose of that application on merits, whether by entering a provisional finding on issue (1) or by trying that issue as preliminary issue. I leave it to decide. There will be no order as to costs.