1. 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 Buddhu Lal v. Mewa Ram A.I.R. 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. Strictly speaking, therefore, the question whether the trial of a particular suit or the trial of a particular issue should go on or should be stayed is no question on the merits of the case, and the decision of that question cannot be said to be a decision of an issue in the case. The whole thing relates to a matter of procedure. The Court has to decide, having regard to the facts of the case before it and the facts of a previous case, whether it should stay its hand till the earlier suit is finally decided or whether it shall, forthwith, proceed to hear the case. When the Court decides either way it decides a matter of procedure which has nothing to do with the merits of the case.
8. The result is that there is no decision of a 'case.' The Court has to pass orders at every step, but every order cannot be called the decision of a 'case.' A 'case' must be something, complete in itself, so that it may be treated as an independent matter. Though, therefore, the Full Bench case quoted above is not strictly applicable, I am of opinion that no 'case' has been decided, and no revision therefore lies.
9. Coming to the second point, viz.: the Court below has acted in pursuance of an order of this Court and, therefore, it cannot be said that it has acted with material irregularity, I am of opinion that the argument is entirely fallacious. A copy of the judgment 9th February 1928 has been handed over to us by Dr. Katju. A perusal of it clearly shows that the learned Judges of this Court were never told that the trial of suit No. 32 of 1925 had been stayed under the provision of Section 10, Civil P.C. The order of the Court, to expedite the hearing, was based on the fact that the learned Judges found that the suit instituted in 1925 was still hanging fire without any adequate cause. Naturally, the learned Judges would express the desire that the case should be taken up forthwith. But this desire expressed by this Court could not override the express provisions of law. It was never meant by this Court, as the judgment itself shows, that the Subordinate Judge was to override the law. The Subordinate Judge might have made a representation to this Court, stating the circumstances under which the trial of the case had been stayed, and asked whether it was the intention of this Court that the case should be proceeded with, even-under the circumstances stated by himself. In my opinion, on receipt of a copy of the judgment of 9th February 1928 the learned Subordinate Judge could have and should have contented himself with recording an order, describing the circumstances under which the trial had been stayed and saying that the stay order passed by his predecessor-in-office should stand. As I have already stated, no attempt has been made to support the order of the learned Subordinate Judge on the merits. The learned Subordinate Judge himself does not say that the justice of the case requires that the stay order, previously passed, should now be cancelled and the trial of the case should be proceeded with. In the circumstances the order of the Court below must be treated as improper.
10. Although no revision is maintainable, it is always open to the applicants before us to ask the Court below to reconsider its order, and it is likely that the Court will see its way to reconsider it.
11. The petition fails and I would dismiss it. As the respondents have no case and as the order complained of, which is an improper order, was pissed at the instance of them, and the revision fails on a technical ground, I would direct the parties to pay their own costs in this Court.
12. I agree to the order which my learned brother proposes to pass. It is not necessary to decide the question whether an order staying or refusing to stay a case, on the ground that Section 10, Civil P.C., applies or does not apply, is or is not a 'case decided' within the meaning of Section 115, Civil P.C. By an order, dated 21st December 1925, it was ruled by a previous Munsif that Section 10, Civil P.C. applies, and the suit was consequently stayed. This order has not been reversed by any higher Court and is, in my opinion, in full force. The order of this Court, dated 9th February 1928, was passed on a petition for revision directed against a different order, as pointed out by my learned colleague. A remark to the effect that the suit should proceed occurs only casually, and was made without any intention of interfering with the order of stay, already referred to. The attention of the Court was not drawn to it, and no reference is made to it in the judgment of this Court. It is inconceivable that this Court should have set aside an order which was not and could not have been then called in question. I have dwelt on this aspect of the case, as I apprehend all subsequent proceedings, being in disregard of the mandatory provisions of Section 10, Civil P.C. may be challenged as taken without jurisdiction, and the Court below should do well to take timely action in the matter.
13. I agree with my learned colleague that the Court below has not decided any 'case.' It has not itself decided whether Section 10, Civil P.C., applies. That question was decided before, and as I read, the judgment of the lower Court was not reopened. It has merely directed the case to proceed. An order of this character cannot be said to be one 'deciding a case' within the meaning of Section 115, Civil P.C. This being so, I concur in dismissing this application.