( 1 ) THIS is an application in revision which has been argued with great care and thoroughness by mr. Gopi Nath, on the one hand, and by Mr. Hari Sarup, on the other. The question that has been raised is one of some difficulty as also of considerable importance.

( 2 ) AN application was made in an appeal for staying that appeal because the matter in issue in that appeal was a matter directly and sub-stantially in issue in an earlier instituted appeal.

( 3 ) WHAT the real test for applying Section 10 is has been differently laid down by different High courts. Two decisions of this Court were cited before me, one reported in Hati Ram v. Hazi mo-hammad, 1953 All LJ 578: (AIR 1954 All 141) (A), and another reported in Bhola Prasad v. Jagpata, 1954 All LJ 696 : ( (S) AIR 1955 All 384) (B ). Neither of these two cases really touches the point before me. Mr. Gopi Nath argued that the real test to be applied was one of res judicata, that is, if the earlier suit or appeal was going to operate as res judicata in respect of the second suit or appeal, then in such a case Section 10 was bound to be applicable. I have myself found some difficulty in accenting this test of res judicata. For one thing, res judicata may apply even in cases where a point is not raised by parties and it may also operate in cases where a point though not material to the decision of the case is yet raised by parties, gone into and decided by a Court. Now, in my view, such matters though they may operate as res judicata would not fall strict-ly speaking within the purview of Section 10. As i have said earlier the question that arises is one of some difficulty and, I therefore, consider it desirable that the question arising in this case be decided by a Bench of two judges. I accordingly direct that the record of this case be laid before the Honble Chief Justice for the constitution of such a Bench. Desai, J.

( 4 ) THIS is an application for revision of an order passed by the District Judge, Mainpuri, in civil appeal No. 143 of 1950 pending before him refusing to stay its hearing during the pendency of civil appeal No. 191 of 1949 filed by the applicant himself and pending before the learned district Judge.

( 5 ) IN 1948 the applicant instituted a suit against the opposite party for possession over a car; the suit was registered as suit No. 21 of 1948. It was pleaded in the suit by the applicant that he was the owner of the car having purchased it in Delhi with his own money, that he lent it for a certain period to the opposite party and that the opposite party had not returned it. The suit was contested by the opposite party with the pleas that he himself was the owner of the car having purchased it in Delhi with his own money but in the name of the applicant, that he was the owner of a shop known as "sasta Kisan Loha Store", that the applicant worked in the shop as the manager, and that his claim to the car was a false one.

( 6 ) THE issues that were framed by the trial Court were whether the applicant was the owner of the car, whether the opposite party had purchased it benami in the name of the applicant and whether the applicant had lent it to the opposite party. No dispute arose out of the pleadings about the interest of the applicant in the shop; whatever interest might have been claimed by him in the shop was wholly irrelevant for the purposes of the suit brought by him because he did not claim title to the car on account of his Interest in the shop and no issue also was framed about his interest in the shop. The shop was referred to by the opposite party in his written statement but only for the purpose of showing his relationship with the applicant and explaining how the car happened to be purchased benami in the name of the applicant.

( 7 ) THE suit was dismissed, the trial Court holding that the car belonged not to the applicant, but to the shop sasta Kisan Loha Store.

( 8 ) THE applicant filed an appeal which is civil appeal No. 191 of 1949