JUDGMENT 1. This appeal is against a decree of the Additional Subordinate Judge of Burdwan dismissing a suit for partition. 2. The plaintiff, Hanseswar, who is the appellant before us is the nephew of the defendant Bipin. He sued the defendant and his wife Giribala, for partition of joint family properties and accounts on the Original Side of the High Court in 1914. 3. The suit was amicably settled and a solehnama dated the 29th September 1916 was put in, upon which a decree was passed on the 15th December, 1916. It was agreed that some of the properties would belong to Giribala Dasi and some others to Hunseswer that Bepin and Hunseswar would get all the other joint properties, moveable and immovable, in equal shares and that excepting these all the claims mentioned in the plaint had become void and there was no claim or demand against any body. 4. It is unnecessary to refer to the other terms. There was however, no provision for partition either in the Solehnama or in the decree based upon it. 5. The present suit for partition of all the properties alleged by the plaintiff, to be joint properties belonging to him and the defendant was instituted on the 26th September, 1917 in the Subordinate Judge's Court, Burdwan. The plaint comprises some properties other than those specifically mentioned in the plaint in the suit on the Original Side referred to above. 6. The defendant's objection was two fold; first, that the High Court decree was a preliminary decree for partition, and that partition could be effected only by application to the said Court and secondly that the plaintiff having given up all claims against the defendant other than those mentioned in the plaint in the suit in the High Court, under the Solehnama could not include fresh claims in the present suit. 7. The learned Subordinate Judge was of opinion that the decree passed by the Original Side of this Court was a preliminary decree? or partition. He observed: A preliminary decree in a partition suit ordinarily decides the shares of the parties. The actual work of partition is to be done by the Commissioner appointed by the Court and the final decree is based on such report. The decree now under consideration clearly decided the shares of the parties in all properties, moveable and immoveable. He observed: A preliminary decree in a partition suit ordinarily decides the shares of the parties. The actual work of partition is to be done by the Commissioner appointed by the Court and the final decree is based on such report. The decree now under consideration clearly decided the shares of the parties in all properties, moveable and immoveable. The last paragraph of the decree authorizes the parties to apply to the Court as occasions arise. 8. The Court below accordingly was of opinion that the plaintiff could apply to the High Court for partition under the liberty reserved. 9. We do not think, however, that the liberty reserved would enable the plaintiff to apply for partition of the properties when there was no order in the decree itself for such partition," The "liberty to apply" does not empower the Court to deal with matters outside the scope of the order. 10. As the properties are joint and the shares of the parties are define by the Solehnama decree, there can be no doubt that they are liable to partition. There is therefore nothing to prevent the plaintiff from maintaining a suit for partition of joint properties (subject to the provisions of paragraphs 3 and 4 of the Solehnama) which have not already been partitioned since the date of the Solehnama. 11. The learned Subordinate Judge has made some observations in the concluding portion of his judgment as regards the construction of the decree passed by the. High Court, and arguments have been addressed to us here upon the construction of the decree and as to whether the plaintiff is entitled to claim partition of any of the properties other than those specifically mentioned in the suit brought on the Original Side, whether he can do so upon the plaint and the issues as they stand or whether they require any amendment. 12. All these are questions which must be decided by the Court below in deciding the case. That Court having found that the suit was not maintainable in that Court, it was unnecessary for that Court to make the observations contained in the concluding portion of its judgment. 13. We do not express any opinion whatever upon those points, as they will have to be considered by the Court below in deciding the case on the merits. 14. 13. We do not express any opinion whatever upon those points, as they will have to be considered by the Court below in deciding the case on the merits. 14. We are of opinion that the decree of the Court below dismissal the suit must be set aside and the case sent back to that Court in order that it may be disposed of according to law. 15. We trust that the case will be taken up by the learned Subordinate Judge as soon as practicable. 16. Costs to abide the result.