HATHI RAM Vs. HAZI MOHAMMAD

JUDGEMENT

(1.) THIS is a defendant's application against an order of the learned Civil Judge of Gorakhpur refusing to stay further proceedings in a suit.

(2.) THE present suit was brought by the plaintiff on the basis of a mortgage executed by the defendant on 5-1-1939. The mortgage was in favour of one Mitra Nand and the plaintiff has purchased the mortgagee rights from Mitra Nand. Before the institution of the present suit the mortgagors filed a suit numbered as Suit No. 1 of 1944 in the same Court against the mortgagee under Section 33, U. P. Agriculturists' Relief Act for accounting. That suit, filed by the mortgagors, was dismissed by the learned Civil Judge and an appeal is now pending in this Court against the decision of the Civil Judge. In the present suit an application was made before the learned Civil Judge under Section 10, Civil P. C. praying that the hearing of the present suit be stayed, in view of the fact that the previous suit between the same parties was pending in appeal before the High Court. The learned Civil Judge dismissed this application and held that Section 10, Civil P. C. did not apply to the facts of this case. The present revision has been filed against the order of the learned Civil Judge refusing to stay further proceedings in the present suit.

(3.) A preliminary objection has been taken to the hearing of this revision on the ground that the order of the learned Civil Judge does not amount to a "case decided" within the meaning of section 115, Civil P. C. It is not necessary to decide this point, as, in our opinion the order of the learned Civil Judge is correct and he rightly refused to stay further proceedings in the suit.