1. The plaintiff made an application, I. A. 26, praying that his right to a 2/3 share in certain items of the plaint-schedule immoveable properties and his full ownership in respect of certain other items may be recognised and that the same may be divided by metes and bounds. The 7th defendant, who is the only contesting defendant in this matter, objected to such a relief . being given on the ground that the decree that had been passed in the case earlier on 2-12-1936 was a consent decree whereby the parties had decided about the shares due to each other and that the plaintiff could not ask for any larger share or for other items to be allotted to him contrary to that compromise decree. The learned District Judge dismissed I. A. 26 holding that the decree which was passed on 2-12-36 was not a 'preliminary decree' but a 'compromise decree' which was in the nature of 'final decree' and that therefore no relief could be given in this suit beyond what had been conceded in the compromise decree; and that the remedy of the plaintiff to recover any larger share must be by other proceedings. I do not think that this order of the learned District Judge can be supported.
The decree that was passed on 2-12-1936 merely recognised though by consent, the shares to which the parties were then entitled in the immoveable properties. It did not finally dispose of the suit. There were other questions relating to moveables and the actual division by metes and bounds of the immoveables and other matters which had still to be gone into. It is represented in I. A. 26 that by reason of a purchase in Court auction subsequent to the compromise decree the plaintiff has become entitled to an enhanced share; and that he has also become entitled to a further share or certain items as heir of his mother who had since purchased the rights of some who were parties to the compromise decree. These matters were all subsequent to the compromise decree and their consideration would really fall within the ambit of Order 22, Rule 10, Civil P. C., which provides that in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
3. It has been held in 'Jotindra Mohan v. Bijoy Chand', 32 Cal .483 (A) that a suit for partition, even after the report of the Commissioners is confirmed and decree is directed to be drawn up in accordance therewith, is a pending litigation, until the Court signs the final decree; and that a decree for partition, to be operative, must be engrossed on stamped-paper as required by the Stamp Act, and until the Judge signs the decree so engrossed, it cannot be said that the suit has terminated; and an order directing a party to be added under Section 32, Civil P. C. can therefore be made in such a suit before it has actually terminated. The decree of 2-12-1936 cannot be said to be a final decree. The definition of a preliminary decree is that further proceedings are to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit.
4. It cannot be said that the decree of 1938 finally disposed of the suit, even in respect of the immoveable properties as the shares had still to be divided by metes and bounds either through a commissioner or otherwise. If in the meantime and subsequent to that decree there has been either an enlargement or dimunition of the shares or rights of the parties by reason of succession or subsequent-purchases or by assignments of interest by whatever cause, the Court, before passing its final decree can and ought to go into the matter and grant a final decree in accordance with such subsequent devolutions to avoid multiplicity of suits and give complete and appropriate relief to all the parties. This matter has been discussed in the Code of Civil Procedure by Mulla, (12th Edn.), Vol. 2, at page 963. According to the learned author the words:
' 'During the Pendency of a suit' mean 'before a final decree or order has been passed or made in the suit'. Hence, the provisions of this rule (Order 22, Rule 10) apply if the assignment, creation or devolution of interest takes place before a final decree or order is passed or made in the suit. ......Until the decree is passed, a transferee 'pendente lite' is entitled to apply under this rule to be joined as a party'.
The learned District Judge could not, therefore, dismiss I. A. 26 on the ground that he has done. It does not appear to be even just or reasonable of even convenient to drive the plaintiff to a separate suit to recover any share or items which may now be due to him from practically the same parties.
5. This revision petition is allowed. The order of the learned District Judge on I. A. 26 IS set aside He will enquire into and dispose of that application in accordance with law in the light of the observations made above. The parties will bear their own costs of this revision petition.
6. Revision allowed.