JUDGMENT

Mukerji, J. - The questions that we have to decide in this petition for revision are: (1) whether a revision is entertainable and (2) whether the order of the Court below was right:

2. The facts of the case, briefly, are these: The plaintiffs represent two or three brothers and the respondents represent the third brother, Lal Man. A partition suit was instituted by Lal Man, in his lifetime, and it is now pending for final decision before His Majesty in Council. The question in that case is whether Lal Man had separated or had an interest still left in the family property, on the ground that he was still joint with his brothers and their descendants. The applicants who were the plaintiffs in the Court below, filed a second suit, being No. 32 of 1925, for recovery of certain moneys due from debtors, as a delay in recovery of the debts would entail a loss of the property. Among the defendants were not only the debtors but also the representatives of Lal Man the respondents. The debtors paid the money into Court and the sole dispute in the suit remained between the very parties who are parties to the litigation now before the Privy Council. The learned Subordinate Judge, before whom the suit (No. 32 of 1925) came, directed that the trial of the second suit should be stayed till the final decision of the former suit.

3. While the trial was stayed, the plaintiffs thought that they, being the owners of more than one-half share of the money in deposit, should be allowed to take away the amount deposited in Court on furnishing security. They made a request to the Court below accordingly, and that request was granted. Thereupon the present respondents came up in revision to this Court (No. 47 of 1927).

4. This Court in the said revision case, set aside the order of the Court below and remarked that the decision as to who should have the money could not be arrived at, till the suit No. 32 of 1925 was decided. The learned Judges could not discover the cause of the delay in the disposing of the suit No. 32 of 1925 and directed the Court below to proceed with the suit. Evidently, nobody pointed out to the learned Judges that Section 10, Civil P.C., had been applied, without contest by the other side, and the suit could not be decided as desired by those Judges.

5. On receipt of the order of this Court, as contained in the judgment passed in revision on 9th February 1928, the learned Judge of the Court below proceeded to try the suit and, therefore, the question whether Lal Man was joint with his brothers or not. Thereupon the plaintiffs (of suit No. 32) have come up in revision.

6. For the respondents, Mr. Peary Lal Banerji has not, for once even, contended that Section 10, Civil P.C., was inapplicable. His contention was that the Subordinate Judge acted on the orders of this Court and, therefore, it cannot be said that he acted with material irregularity. He further argued that the Court below had not decided a 'case' within the meaning of Section 115, Civil P.C., and that therefore a revision was not competent.

7. To take the second point first, it appears to me that when the learned Judge in the Court below decided that he would proceed with the suit, he did not decide a 'case' within the meaning of Section 115, Civil P.C. In the Full Bench case of Buddhoo Lal and Another Vs. Mewa Ram, AIR 1921 All 1 the majority of the learned Judges held that a decision of one of the issues in a suit could not be taken to be the decision of a 'case' within the meaning of Section 115, and that a revision would not lie to contest that decision. In this case, although an issue was actually framed on the question of the applicability or otherwise of Section 10, Civil P.C., strictly speaking, no such issue arose. The question before the Court was whether it should proceed with the trial or should stay its hand. A decision of this question could only quicken or delay the disposal of the suit. but, otherwise, it had no effect on the merits of the case. Str