G.K. Misra, J.
1. Petitioners 2 and 3 are respectively the son and daughter of petitioner No. 1. Title suit No. 197 of 1956 (hereinafter referred to as the suit) was filed by opp- party 1 (Plaintiff) in the Court of the Munsif. Second Court, Cuttack on 5-10-50. for partition. Plaintiff's title is based on purchase of eight pies interest of Madhusudhan Das on 5-10-55 in court auction on 7-5-1956 oi Surendranath Sur and others (defendants 10 (a) to (f)) According to the plaintiff, his vendors defendants 19 (a) to (f) had purchased the property and obtained delivery of possession in 1936 A preliminary decree was passed e.x parle on 4-11-58. The petitioners claimed two annas eleven pies and 1 Biswa interest in the suit properties on the strength of three registered sale deeds executed in favour of the deceased wife of petitioner 1 on 30-5-47. 1-1-49 and 3-1-49 As the tenure vested in the State of Orissa. there was dispute between the plaintiff and the petitioners regarding payment of compensation Order dated 19-1-62 of the Compensation Officer, Tenure Section, in Compensation Case No. 470 of 1960, shows that the three sale deeds of the petitioners and the preliminary decree in the suit were produced before that officer This compensation matter was carried to the Board of Revenue and the plaintiff got compensation only in respect of seven pies interest in the entire tenure The order of the Board of Revenue was passed on 17-8-63 upholding claim of the petitioners to compensation On 6-4-64 plaintiff and the defendants filed a compromise petition in the suit. On 28-4 1964 the petitioners filed an application under Section 151 and Order 1 Rule 10, C P C praying that they should be impleaded as parties to the suit. On 15-5-1964 the application was rejected. Againsl the order rejecting the application of the petitioners to add them as parties to the suit the Civil Revision has been filed.
2. Mr. Misra contends that the trial Court failed to exercise a jurisdiction vested in it, or, at any rate, acted in exercise of ita jurisdiction illegally and with material irregularity in not allowing the application of the petitioners to implead them as parties. This contention requires careful examination.
3. Order 1 Rule 10 (2). C. P. C. may be quoted
The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, he struck out. and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. be added.
Thus two questions arise for consideration :
(i) Whether the presence of the petitioners is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit: find
(ii) If the petitioners are necessary parties. can they be impleaded as defendants after the preliminary decree '?
4. The petitioners claim two annas eleven pies and one Biswa interest in the disputed properties under three sale deeds. On the footing of these documents their claim for compensation has been allowed in respect of their interest in the tenure which vested in the State and that has become final It may be that ultimately the claim of the petitioners may he negatived in the suit The position is how-ever clear that they claim interest as cosharers They would not be bound by the result of the suit if they are not made parties. It is open to them to file a fresh suit for partition impleading the plaintiff and the defendants its parties thereto If their claim succeeds, the effect of the decree in the present suit would wholly disappear Petitioners are therefore, necessary parties and in their absence the determination of various shares of different co-sharers 'cannot be effectually and completely made.
5. The expression that 'the Court may at any stage of the proceedings add the name of any person, as plaintiff or defendant, who ought to have been joined is very wide Until the decree is drawn up parties can be added or struck out if other conditions in the Rule arc satisfied Each case is to be determined on its own facts and circumstances. The question for consideration is whether 'any stage' would cover a stage after the passing of the decree.
Section 2(2), C. P. C. defines 'decree' as the formal expression of an adjudication which, so far as regards the Court expressing It, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. There is no dispute that in all suits where only one decree is passed completely disposing of the suits, there cannot be any addition of parties under Order 1 Rule 10 C. P. C. subsequent to the decree. The controversy arises with respect to cases where both a preliminary and final decree are passed.
6. It is contended by Mr. Misra on the basis of ILR 32 Cal 483. Jotindra Mohan Tagore v. Bejoy Chand Mahatap that parties can be impleaded under Order 1 Rule 10 C. p. C. even after preliminary decree. Reliance is placed on the following observations :
' A decree to be operative must, under the Indian Stamp Act, be engrossed on paper as required by that Act, and, until the Judge signs the decree so engrossed, it cannot be said that the suit has terminated. The order confirming the Commissioner's report in this case must be taken to be an interlocutory order made in the course of the suit and preparatory to the order that might determine finally the fights of the parties.
Section 32 authorises the Court to add a party 'at any time' in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit. This must, however, be done before the 'effectual and complete' ad indication and settlement of the question raised.'
This decision has been followed in AIR 1942 Pal 185 (2) and AIR 1964 Andh Pra 260.
It is necessary to examine the correctness of these decisions.
7. In the Civil Procedure Code (Act No. XIV of 1882) 'decree' had been defined thus--'only relevant portions quoted) :
'Decree' means the formal expression of an adjudication upon any right claimed, or defence set up in a Civil Court, when such adjudication, so far as regards the Court ex-pressing it. decides the suit (or appeal) The explanation in Section 2(2) of the present Code (Act No. V of 1908) has been newly added and so also the provision in the main definition that a decree may be either preliminary or final Section 97 was enacted for the first time in the present Code. It lays down that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree Under the old Code, objections to a preliminary decree would be raised in appeal against final decree
Consistent with the new provisions in Section 2(2) and Section 97. Order 20 Rule 18 (2) was newly introduced. It prescribes that where the Court passes a decree for partition of property or for the separate possession of a share therein then, if and in so far as such decree relates to any other immoveable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further enquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required
The aforesaid three provisions newly introduced for the first time in the present Code, bring into bold relief an important change that in a preliminary decree, certain rights are conclusively determined and unless the preliminary decree of a court is assailed in appeal, the rights so determined become final and conclusive and cannot be questioned in the final decree. In that limited sense the preliminary decree itself is a final decree so far as those rights are concerned.
8. The distinction between the procedures of the Old and Now Codes may he pointedly noticed. Under the Old Code, it was not necessary to pass a preliminary decree in the first instance and then a final decree in the partition suit. It was, however, the usual practice to pass an interlocutory order declaring the rights of the parties and then pass a final decree. The position under the Old Code was expressed in clear manner in ILR 25 Mad 244 (277) (FB) thus-
'In the case of a suit for partition there is to he one decree, but before making that decree the Court may appoint a Commissioner to submit a scheme for effecting the partition under Section 396 equal to Order 26. Rules 13 and 14.) There is in the section no reference made to a preliminary decree. All that the section enjoins is that the Court after ascertaining the several parties interested in the property of which a partition is sought and their several rights therein, may issue a commission, etc.'
In AIR 1923 Mad 147 on the authority of this decision, the following observation was made:
'There was no such thing as a preliminary decree under the Old Civil Procedure Code in a suit for partition, and of course, no such thing as a final decree As a matter of practice the order, ascertaining the several parties interested in the property to be divided and their several rights therein, used to be treated as itself a decree subject to appeal and as such an order does contain the adjudication as to the rights and shares and persons interested, the description of that order as a decree may not be considered inapt. But the description of that order as a preliminary decree and the description of the decree passed after the report of the Commissioner making the actual division as a final decree are not authorised by the Old Civil Procedure Code
That order was not a preliminary, but an interlocutory order ascertaining the rights and shares with a view to pass the partition decree.
This position under the Old Code explains the conclusion reached in ILR 32 Cal 483. It was correctly decided under the law, as it then stood. The application for addition of parties was made before the decree was passed and by that time there was no other decree excepting the interlocutory order. The application was rightly allowed as it would not reopen any decree previously passed declaring the rights of the parties.
9. Though ILR 32 Cal 483 was correctly decided under the law, as it then stood, the aforesaid distinction in the laws under Old and New Codes was not kept in view and the Calcutta decision was wrongly applied to cases, where preliminary decree had already been passed, in AIR 1964 Andh Pra 260 and AIR 1942 Pat 185 (2V With respect. I must say that these two decisions have been wrongly decided.
10. The correct view of law was taken in AIR 1916 Nag 120; AIR 1924 Oudh 33 and AIR 1935 Nag 64. In all those cases it was distinctly pointed out that the power under Order 1, Rule 10, C.P.C. can ordinarily be exercised only in proceeding not concluded by a decree unless the person to be added is a subsequent transferee. Some of these cases were in respect of preliminary decrees for partition or in mortgage suits. In both the cases, the principle is however, the same. Such preliminary decrees cannot be set aside except in the modes provided by law.
11. In AIR 1963 SC 992 the effect of a preliminary decree for partition was authoritatively pronounced. Their Lordships said--
'Therefore, if the reason given by the High Court is accepted, it would mean that no finality attaches to decree at all That is not the law A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly a final derision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or partition suit, is not a tentative decree, but must, in so far as the mailers dcall with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees, a preliminary decree and a final decree, the decree which would be executable would be the final decree But the finality of a decree or a decision does not necessarily depend upon its being executable The Legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the Court arrived at the earlier stage also has a finality attached to it.'
This decision clearly sets forth the effect of a preliminary decree under the new Code. AIR 1964 Andh Pra 260 and AIR 1942 Pal 185 (2) and other decisions on that line have not kept the aforesaid principles in view and are contrary to law.
12. To sum up, even if other conditions under Order 1, Rule 10(2) are fulfilled, an application for addition of parties cannot be allowed after the preliminary decree is passed except in for lain exceptional circumstances, such as, impletion of transferees subsequent to the preliminary decrees or death of parties whose rights were carved out in the preliminary decree. For instance a preliminary decree deduces that X. Y and Z have one-third share each in the disputed property. Z dies leaving behind some heirs who are entitled to his share with varying interests. Such heirs can he added at the final decree stage in place of 7. and on their desire their varying interests may be carved out at the final decree stage. In these exceptions the heirs of (sic) the preliminary decree declaring rights, title and interest of the parties in a particular manner are not affected.
13. Judge by the aforesaid tests the application of the petitioners is liable to ho rejected. A preliminary decree had already been passed If the petitioners rights are adjudicated upon at the final decree stage and the succeed, the right title and interest of the different co-sharers as determined in the preliminary decree, must necessarily be affected. The preliminary decree has become final and it cannot be touched in that process The only remedy of the petitioners is to file a suit impleading the plaintiff and the defendants as parties therein The decision in present litigation would not constitute resindicata against the petitioners.
14. In the result the Civil Revision fails and is dismissed. In the circumstances, parties to bear their own costs throughout.