JAGDISH SAHAI, J. :- (for himself, Gangeshwar Prasad, S. N. Singh and Rajeshwari Prasad, JJ.) : It would contribute to a clear understanding of the question referred to us for our opinion if the following facts are given :-

Suit No. 6 of 1956 of the Court of the Civil Judge, Gorakhpur, was filed by Lala Bulaki Dass (Plaintiff) against (1) M/s. Jai Narain Har Narain, (2) Jai Narain and (3) Har Narain (defendants). In this suit Lala Bulaki Dass, plaintiff, claimed Rs. 22,000/- from the defendants by way of refund of advance money given by him to the defendants along with interest and damages on the allegation that the agreement dated 1-4-1953 between the parties had been breached by the defendants.

2. Suit No. 599 of 1956 of the Munsifs court, Gorakhpur, was filed by Firm Jai Narain Har Narain against (1) Firm Sohan Pal Munna Lal and (2) L. Bulaki Dass. The plaintiff in this case (Firm Jai Narain Har Narain) claimed a sum of Rs. 5,000 from the defendants. Firm Sohan Pal Munna Lal and Bulaki Dass on the allegation that the agreement aforesaid had been breached by them.

3. Suit No. 599 of 1956 was transferred to the court of the learned Civil Judge, Gorakhpur. The two suits were consolidated and disposed of by one common judgment, which is dated 30-4-1957.

4. Suit No. 6 of 1956 was decreed for a sum of Rs. 14,202/7/- against M/s. Jai Narain Har Narain, Jai Narain and Har Narain. Suit No. 599 of 1956 was dismissed.

5. The learned Civil Judge further directed that the main judgment (the one he pronounced) "will remain on the record of suit No. 6 of 1956" and a copy of this be placed on the record of suit No. 599 of 1956 to serve as judgment.

6. In the two suits separate decrees were prepared.

7. M/s. Jai Narain Har Narain, Jai Narain and Har Narain filed First Appeal No. 307 of 1958 in this Court against the decree of the learned Civil Judge dated 30-4-1957. They, however, did not file any appeal against the decree passed in suit No. 599 of 1956 dismissing that suit.

8. When First Appeal No. 307 of 1958 came for hearing before B. D. Gupta, J. and one of us (A. K. Kirty, J.), a preliminary objection was taken that as no appeal was filed against the decree dismissing Suit No. 599 of 1956, the judgment dated 30-4-1957 had become final and first appeal No. 307 of 1958 stood barred by res judicata.

9. The learned Judges referred the question of res judicata to a Full Bench. This is how the matter has come before us.

10. In each of the two suits eight issues were struck. The same are given below :-

(Suit No. 6 of 1956)

"1. Whether plaintiffs purchased any Gur through the Commission agency of the defendants at Basti, if so, how much?

2. What was the rate of commission payable by the plaintiff to the defendants and under what conditions was it payable?

3. Whether the defendant committed a breach of contract in not despatching Gur to Agra according to the plaintiff's instructions if so, its effect?

4. Whether the defendants failed to sell the Gur in question at Chauri Chaura in spite of the instructions of the plaintiff, if so, its effect?

5. Whether the defendants have sold the goods both of Chauri Chaura and Basti and have misappropriated the sale proceeds? If so, its effect?

6. How much Gur has been despatched by the defendants from Chauri Chaura.

7. To what amount of refund as damages is the plaintiff entitled?

8. To what relief, if any, is the plaintiff entitled?"

(Suit No. 599 of 1956)

"1. Whether the suit is barred by Section 69 of the Partnership Act?

2. Whether the plaintiff purchased 1962 maunds of Gur at Basti for the defendants, if so, whether that was part of the transaction of purchase of Gur at Chauri Chaura, if so, its effect on the suit?

3. Whether the defendants had agreed to pay to plaintiff expenses under head Kha to Na detailed in para 3 of the plaint?

4. Whether the plaintiffs are entitled to claim interest, if so, at what rate and how much?

5. Whether the plaintiff sent 500 maunds of Gur by train?

6. Whether the defendants in May 1953