MALIK, CJ.:- These two cases came up before a Bench for hearing in the year 1949 and on 10-5-1949, they were referred to a Full Bench as there was a conflict of opinion between the Allahabad High Court and the Oudh Chief Court on the point whether a revision under S.115, Civil P.C. (Act 5 of 1908) was entertainable by the High Court in a case where a Judge had refused to grant an application under S.10 of the Code. The Allahabad High Court had held that no revision lay to this Court against the order as it was not a case decided, while the Oudh Chief Court had taken a contrary view that it was a case decided and a revision was entertainable. After the amalgamation of the two Courts in 1948 it was considered proper that there should remain no conflict and the case was, therefore, referred to a Full Bench for decision. When, however, the case was put up before a Bench of three Judges on 22-10-1951, they referred it to a larger Bench and on 24-10-1951, when the case came up before a Bench of five Judges they referred it to a Bench of seven Judges. The Full Bench of three Judges or of five Judges did not give any reason why it was necessary to have the point decided by a Bench of seven Judges. It was, probably, due to the fact that there was a decision by a Bench of five Judges in - Buddhu Lal v. Mewa Ram, AIR 1921 All 1 (FB) (A) which the learned Judges thought might have to be reconsidered.

2. The points referred to the Full Bench are:

(1) Whether an order under S.10, Civil P.C. is a case decided? and

(2) Whether it would make any difference if the learned Judge had framed an issue on the point and decided the point as a point in the case?

3. The facts of the case briefly are that a suit was filed for recovery of arrears of rent of a house on the ground that the defendant was a tenant. The defendant filed a written statement in which among other pleas he took the plea that there was a previously instituted suit pending in which the matters in issue in this case were directly and substantially in issue and the suit should therefore remain stayed under S.10, Civil P.C. (Act 5 of 1908). On the pleas raised in the case a number of issues were framed, issue No.6 being as follows :

"Is suit liable to be stayed under S.10, Civil P.C?"

The Court held that the mere fact that appeals were pending against decrees in suits for rent for certain other periods prior to the period now in dispute did not justify the grant of stay under S.10 of the Code and rejected the application. Against that order dated 10-7-1948, this revision was filed.

4. There were two suits filed in the trial Court for two different periods: Suit No.1 of 1948 and Suit No.65 of 1947. There were two separate orders in the two suits and there are two revisions before us.

5. In - Sultanat Jahan Begam v. Sundar Lal, AIR 1920 All 197 (2) (B) in a revision against an order dismissing an application under S.10 of the Code Banerji, J. held that it was an interlocutory order and was not a case decided. He purported to follow the decision of this Court in - Muhammad Ayub v. Muhammad Mahmood, 32 All 623 (C) which was overruled by a Full Bench in - Ramzan Ali v. Mt. Satul Bibi, AIR 1948 All 244 (D). The next case in which the question arose is - Bal Krishna v. Ram Kishun, AIR 1929 All 957 (E). Both the learned Judges (Mukerji and Niamat-ullah JJ.) were of the opinion that an order rejecting an application to stay under S.10 of the Code was not a case decided. Mr. Justice Mukerji was of the opinion that it was a matter merely of procedure which had nothing to do with the merits of the case and was therefore not a case decided. Mr. Justice Niamat-ullah contented himself by saying that in the circumstances of that case where the Court had not decided whether S.10 of the Code applied or not but had merely directed the case to proceed it could not be said to be a case decided. In - Madan Mohan v. Kamla Narain Dube, AIR 1934 All 520 (F) Sulaiman and King JJ. dismissed a revision applicat