MOHD YUSUF Vs. AHMAD MIYA

JUDGEMENT

(1.) Having heard learned counsel for the parties, I am of opinion that the impugned order dated April, 1986 deserves to be set aside. By this order, the trial Judge has directed stay of the subsequent suit of the applicant (O.S. No. 119 of 1985) till the disposal of suit No. 68 of 1977 filed by the first two opposite parties Ahmad Miya and Idu Miya. He has also rejected the prayer made by the present applicant for consolidation of the two suits under Rule 1 of Order IV-A, C.P.C.

(2.) An ex parte decree had been passed against the present applicant in suit No. 68 of 1977. The relief claimed in that suit is that the two plaintiffs, who are admittedly elder brothers of applicant Mohd Yusuf, were the exclusive owners of the property in suit That decree was later set aside by the trial Court The order was affirmed by this Court and, thereafter, by the Supreme Court in Nov., 1985. Ultimately, the suit was directed to be tried on merits. The relief sought in suit No. 68 of 1977 is one of declaration.

(3.) In suit No. 119 of 1985 the claim of applicant Mohd Yusuf is that he has l/3rd share in the same property which is involved in suit No. 68 of 1977. On the basis of that claim, applicant Mohd Yusuf has sought a decree for accounting. He has also claimed a decree restraining the defendants in his suit, namely, the plaintiffs of suit No. 68 of 1977, from letting out certain property and appropriating the rent thereof exclusively. An application for appointment of a Receiver has also been made by Mohd Yusuf in his suit No. 119 of 1985.