JUDGMENT : N.L. Untwalia and B.P. Sinha, JJ. 1. The relevant facts necessary to be stated for the disposal of this civil revision application are these. One Rangu Singh had three sons, Ganauri Singh, Dudheshwar Singh and Deopati Singh, Ganauri Singh and Dudheshwar Singh predeceased Deopati Singh. Dudhesh war's son Ramauthar Singh, who is petitioner No. 1 in this civil revision application, is a lunatic. He, along with his son Bhagwat Prasad Singh and under his guardianship, filed partition suit No. 34/58 of 1948/51, claiming half share in the joint family properties on the ground that Ganauri Singh had died, leaving a widow Alodhan Kuer, who was probably defendant No. 2 in the suit, before 1937. Therefore, on his death the properties came to be owned and possessed half and half by two branches only, namely, those of Dudheshwar Singh and Deopati Singh. The suit was contested by Deopati Singh and, as it appears, also by Alodhan Kuer. In spite of their contest, a preliminary decree was passed by the court below on the 7th of August, 1951, declaring that the plaintiffs were entitled to half share in the suit properties. This decree was, however, challenged in First Appeal No. 444 of 1951 by Deopati Singh and others (it appears, also by Alodhan Kuer, as the facts stated in the ORDER :under revision indicate). 2. The further facts are that after the passing of the preliminary decree, Bhagwat Prasad Singh, who was the eldest sane adult member of the family of Ramautar Singh, executed a partition deed in which joined Deopati Singh and Alodhan Kuer. By the partition deed, executed and registered on the 2nd of February, 1952, which is Exhibit A in the present proceeding, one-third share in the joint family properties was given and allotted to Alodhan Kuer, one-third share was given and allotted to the branch of Ramautai Singh and one-third share was given and allotted to Deopati Singh. The partition by the deed (Ext. A) was complete by metes and bounds. About two months later, First Appeal No. 444 of 1951 was allowed to be dismissed and was dismissed on the 7th of April, 1952. It also appears that Deopati Singh, after partition under Exhibit A, made a gift of his properties, which he had got in lieu of his one-third share, to Ram Binod Sharma, opposite party No. 1 in the civil revision application. It also appears that Deopati Singh, after partition under Exhibit A, made a gift of his properties, which he had got in lieu of his one-third share, to Ram Binod Sharma, opposite party No. 1 in the civil revision application. Alodhan Kuer's daughter, Muneshwari Devi is opposite party No. 2, from the facts stated in the ORDER :under revision it appears that Alodhan Kuer is dead, but she also is opposite party No. 3 in the civil revision application. It is not necessary to go into the complexity of this question. Be that as it may, the fact which is to be specifically stated is that after the lapse of twelve years, on the 7th of September, 1964, the petitioners, out of whom petitioner No. 3 is a minor son of Bhagwat Prasad Singh and petitioner No. 2 is his widow-since Bhagwat Prasad Singh died after the execution of the deed (Ext. A) - filed a petition dated the 5th September, 1964, in the court below, asking it to appoint a Pleader Commissioner for partitioning the properties by metes and bounds and to pass a final decree on its basis. The opposite party objected to it on the ground that the properties had already been partitioned by Exhibit A and, therefore, they were no longer available for partition by appointment of a Pleader-Commissioner. The court below has rejected the application filed by the petitioners on the 7th of September, 1964, on two grounds, namely (i) that the properties have been partitioned amicably between the parties under Exhibit A and, therefore, there was nothing further left for the court to partition by appointment of a Pleader Commissioner, and (ii) that in the application filed by the petitioners no guardian ad litem was appointed for petitioner No. 1, who is a lunatic. They have come up in revision to this Court. 3. We shall leave the second point as it is, without saying much in regard to that, because had we not felt inclined to support the ORDER :of the court below on the first point, probably, we would have remitted the case back to that court directing it to appoint a guardian of Petitioner No. 1, as was their prayer in another petition filed on the same date, i.e., the 7th September, 1964, but on which a formal ORDER :of the court was not made. But, on consideration of the entire facts and circumstances of the case, we do not feel inclined, in exercise of our revisional power, to upset the ORDER :of the court below on the first point. 4. On the facts stated above, it is clear that, whatever may be the technical position in law, with reference to the provisions engrafted in ORDER :XXI, Rule 2 and ORDER :XXIII, Rule 3 of the Code of Civil Procedure, the court below has committed no error in following the principle of law laid down by the Calcutta High Court in the case of Tara Pada Ray v. Shyama Pada Ray AIR1952Cal579 and in refusing to appoint a Pleader-Commissioner for effecting partition of the properties by metes and bounds. It may be stated here that the petitioners wanted, in view of the death of Deopati Singh after the passing of the preliminary decree and after the execution of Exhibit A, two-third share in the joint properties, that is to say, one-sixth more share than their half share, as was declared by the preliminary decree. This was on the footing that Deopati Singh had made a gift of his one-third share allotted to him under Exhibit A, and since under the preliminary decree he was entitled to half share, the balance one-sixth share was claimed by the petitioners as being the heirs of Deopati Singh after his death. That is how they claimed two-third share (i.e. one-half plus one-sixth share) in the joint properties. 5. The contention put forward on behalf of the petitioners is that after the passing of the preliminary decree a final decree has got to follow, or, a final decree could be passed on compromise which could be recorded under ORDER :XXIII, Rule 3 of the Code of Civil Procedure on the basis of Exhibit A. We are not impressed by this argument. The Calcutta High Court has pointed out that even after the passing of the preliminary decree if the properties sought to be partitioned are partitioned amicably between the parties, the court is not obliged to partition them any longer by passing a final decree. It may be a case of adjustment of the decree under ORDER :XXI, Rule 2 of the Code of Civil Procedure, but the court below has really not proceeded on this basis. It may be a case of adjustment of the decree under ORDER :XXI, Rule 2 of the Code of Civil Procedure, but the court below has really not proceeded on this basis. The Patna High Court in several decisions, as also other High Courts, has taken the view that at the stage of passing final decree the court can take notice of the adjustment of the decree under ORDER :XXI, Rule 2 of the Code of Civil Procedure, although it is not certified in accordance with the provisions contained therein. We, however, do not rest our JUDGMENT : on the basis of ORDER :XXI, Rule 2 of the Code of Civil Procedure. On the facts of this case, what we notice is that Bhagwat Prasad Singh, who was the only sane male member in the family of Ramautar Singh, partitioned the properties by executing Exhibit A. Thereafter the First Appeal in which the preliminary decree was challenged was not pursued and was given up, as stated above, as a result of which it was dismissed on the 7th April, 1964. For the reasons best known to the petitioners, for a period of more than twelve years they slept over the matter and all of a sudden in September, 1964, they wanted the court below to pass a final decree by partitioning the properties through a Pleader Commissioner. On the facts and in the circumstances of this case, as we have said above, the court below has rightly followed the principle decided by the Calcutta High Court in the case of Tara Pada Ray v. Shyama Pada Ray and Ors. AIR1952Cal579. In the exercise of our revisional power we do not feel persuaded to interfere with the ORDER :of the Court below refusing to appoint a Pleader-Commissioner. 6. We, however, want to make it clear that in the Calcutta High Court the matter had gone in appeal. Here no final ORDER :terminating finally the partition suit No. 34/58 of 1948/51 seems to have yet been passed. If such an ORDER :is passed, on being asked to do so by the petitioners, it will be open to them to challenge that ORDER :, which will have the effect of a decree dismissing the suit and refusing to pass a final decree, by filing an appeal in an appropriate court. If such an ORDER :is passed, on being asked to do so by the petitioners, it will be open to them to challenge that ORDER :, which will have the effect of a decree dismissing the suit and refusing to pass a final decree, by filing an appeal in an appropriate court. The matter in regard to all the questions of fact and law will be open to be re-examined, if and when such an appeal comes to be filed. For the time being, however, we see no justification to interfere, in the exercise of our provisional power, with the ORDER :in question passed by the court below. 7. In the result, the application in revision fails and is dismissed, but there will be no ORDER :as to costs. Application Dismissed.