These are Revision Petitions againt the order of the District Munsif of Mannargudi refusing to stay the suits brought by the creditors of defendants 1, 2 and 3. In those suits the 1st defendant is the father; defendants 2 and 3 are the sons and the suits are filed to recover sums of money alleged to have been borrowed by the 1st defendant. These suits were filed at various times from December 1932 up to June 1933. In June 1932 the petitioners had filed a partition suit O. S. No. 138 of 1932 on the file of the District Munsif of Mannargudi and the plaintiffs in these money suits have been impleaded as defendants 4, 5, 6 and 7. For the sake of convenience it was arranged to try the suits together as there was a common issue as to whether the debts incurred by the father were for immoral purposes and not binding on the sons. But on a preliminary point the learned District Munsif held that he had no jurisdiction to try the partition suit as the amount involved was beyond his powers and he returned the same for presentation to the proper Court. Against this the petitioners filed a C.M.A in the District Court, West Tanjore, which is still pending. They then applied to have the money suits filed by the creditors stayed and the Court refused to do so. It is argued before me that the Court is bound to do so under S. 10, Civil Procedure Code. An elaborate argument has been addressed before me to show that the reason given for the refusal by the lower Court to grant the stay is not correct. That reason may be briefly summed up as this, that the only point which the District Court had to try was the question of jurisdiction and therefore it had no jurisdiction to try the rest of the suit, and the arguments urged before me are directed to show that the appellate Court was seized of the whole suit. I do not think it is necessary to discuss these arguments because it seems to be perfectly clear that this is not a case where the entire matter in the subsequent suit is in issue in the previous suit. In a recent C. R. P. No. 926 of 1934 I have fully discussed this matter and have held following the balance of the Madras authorities that it is not sufficient that there should be one matter in issue in common in both the suits. I will merely say here that the Madras cases in favour of this view are Kota Sreeramulu v. Kota Sreeramulu , Kuberan Nambudri v. Roman Nair and Vellachamy v. Muthiah (3). The only Madras case quoted against it is Ramachandram Pillai v. Neelambal Achi (4) which is not sufficiently explicit to render it clear whether the case would have answered the test laid down by Venkatasubba Rao J. in Kota Sreeramulu v. Kota Sreeramulu . As regards the Calcutta decision quoted against the Madras view, Janrat Bibi v. Howrah Jute Mills Co. (5), this was the decision of a single judge who failed to notice the earlier Calcutta decision in Bepin Behary Mozumdar v. Jogendra Chandra Ghosh which was relied on by Venkatasubba Rao J. in Kota Sreeramulu v. Kota Sreeramulu nor did he refer to any other cases on the point.
The only question therefore remaining is whether there are any issues in the later suits which are not involved in the earlier partition suit and clearly there are. Neither party has produced a copy of all the issues in all the suits, but I find, for instance, that in O.S No. 338 there was failure of consideration raised as an issue. Apart from that the main issue in the later cases is whether the plaintiffs are entitled to relief and if so what: whereas there is nothing to show that they have asked for any relief in the partition suit. It is to my mind extremely doubtful whether even if they had asked for it, it could be granted. The only authority that has been quoted on this point is an obiter dictum in Balusami Ayyar In re by Ramesam J. and was merely to the effect that the Official Receiver might intervene in a partition suit filed by the sons against the father and ask for a finding as to the nature of the debts and for a decree, provided the nature of the debts is not immoral or illegal. The Official Receiver is in an entirely different position from a creditor in a joint Hindu family because it is the Official Receiver's business to collect the debts due to the estate and he has no option but to do so. On the other hand a creditor is not compelled to collect his debts from a joint family if he does not wish to do so. I have been shown no decision which holds that a decree can be granted to the creditors of a joint family in a partition suit. They are no doubt proper parties but it has been held that even a decree-holder creditor is a proper party. Suppose his debt has been found to be subsisting, how can he be given a fresh decree? As for the argument founded on the Civil Rules of Practice, these rules do not anywhere lay down that the Court should pass a decree in favour of the creditors in a partition suit or pay their debts in the suit. Paragraph 7 in Chap. III relating to Partition Suits in Civil Rules of Practice, Vol. I (page 213) says:
“If any debts or liabilities other than incumbrances, charges, or outgoings, on or out of immovable property, are outstanding, the same shall, unless the Court otherwise’ direct, be ascertained and as far as practicable discharged or provided for before any order or decree is made for the division or distribution of the joint property.”
This does not mean that the Court has got to pay decrees in the creditors' favour or pay their debts as part of the suit, but only to see that they are provided if charged on the family properties, this charge is kept due and that other debts should be allotted to one member or other of the family or in some other way split up amongst them. Whatever may be the case if the family creditors ask in a partition suit, for the relief that their debts shall be paid in that suit (and as I said no such authority has been shown to me), there is certainly no authority to show that if they do not ask for that relief it must be held that an issue has arisen that they have asked for the same. It is seriously sought to be argued that the commonest of all issues “to what relief is the plaintiff entitled” is not an issue for any “relief claimed” under S. 10. So far is this from being true that, on the other hand, the Court can grant no relief at all to a plaintiff who does not ask for it. It is one of the essential claims in every case, even if not expressed in so many words, that the plaintiff is asking relief and if he says he doesn't want any relief there is no alternative but to dismiss his suit. That being so the whole matter in issue in the later suits is not in issue in the partition suit. These Revision Petitions therefore fail and are dismissed with costs at Rs. 15 (pleader's fee) in each of these C. R. Ps.
No orders are necessary on the C.M Ps.
N. R. R.Petitions dismissed.