JUDGMENT-This revision application has been filed against the order passed by the learned civil Judge, Senior Division at Akola on 18th March 1975 on the application made by non-applicant No.4 for being added as a party-defendant in Special Suit No. 31 of 1973. In order to appreciate the rival contentions of the parties to this revision application it would be necessary to note a few facts. 2. The applicant herein, who is the plaintiff in the Court below, is the daughter of one Nandgopal. Non-applicants Nos. 1 and 2, who are defendant Nos. 1 and 2 respectively in the Court below, are son and daughter respectively of Nandgopal and are thus brother and sister of the applicant. Nandgopal, is said to have expired on 1st December 1971 leaving behind him the applicant and non-applicant Nos. 1 and 2 as his heirs. It is said that Nandgopal owned some immoveable property situate-d at Akola and on his death the applicant and non-applicant Nos. 1 and 2 each became entitled to the 1\3rd share in the said immoveable property. On these allegations the applicant filed the suit in forma pauperis on 6th December 1972, impleading non-applicant Nos. 1 and 2 only as defendants. The subject matter of the suit is a plot of land situated at Akola. In the suit the applicant prayed for partition and separate possession of her Ij3rd share in that plot, by appointment of a Receiver, after passing a preliminary decree. On 22nd June 1973 the applicant was allowed to proceed with the suit in forma pauperis and in pursuance of the summons issued, only non-applicant No.2 appeared in the suit and it proceeded ex parte against non-applicant No.1. Non-applicant No.2 filed her written statement on 24th September 1973 and practically admitted the claim of the applicant in the suit and joined herself in claiming the partition of the suit property. 3. On 14th March 1973 when the suit filed by the applicant was pending for enquiry regarding the pauperism of the applicant, non-applicant No.3 filed an application purporting to be under Order I, Rule 10 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for being joined as defendant in the suit. In this application she averred that she had purchased a part of the suit property on 17th November 1972 from non-applicant No.1 and it was in her possession through a tenant. In this application she averred that she had purchased a part of the suit property on 17th November 1972 from non-applicant No.1 and it was in her possession through a tenant. Alternatively' she contended that she had acquired the interest of non-applicant No.1 in the suit was instituted and hence she was a necessary party to the suit. The applicant did not object to the said application of non-applicant No.3 had consequently on 5th April 1973 the trial Court allowed her application and she was brought on record as defendant No.3 by amending the plaint to that effect. 4. After the applicant was permitted to continue the suit in forma pauperis, non-applicant No.3 contested it by filing her written statement on 14th August 1973. She did not dispute that the suit property belonged to Nandgopal and that on his death his interest in the property devolved on the applicant and non-applicant Nos. 1 and 2 as heirs. However, she denied that the applicant was entitled to 1/3rd share in the whole of the suit property. She contended that by virtue of section 6 of the Hindu Succession Act, the suit property would not devolve on the applicant and non-applicant No.2 by survivorship. According to her, by virtue of the said provision of the Hindu Succession Act, only 1 16th share in the whole of the property would devolve on the applicant and non-applicant No.2 as heirs of Nandkumar and non-applicant No.1 would be entitled to 2/3rd share in his capacity as a coparcener of the joint family and as heir of Nandgopal. Non-applicant No.3, therefore, submitted that a preliminary decree may be passed on the basis that the applicant was entitled to 2/3rd share. She next contended that when non-applicant No.1 sold part of the property to her, on 17th November 1972, he had re presented that he had full authority from. his sisters, namely the applicant and non-applicant No.2, to sell the same and that he was manager and had authority to deal with the property on their behalf. Non-applicant No.3 contended that by virtue of this representation made by non-applicant No.1, the shares of the applicant and non-applicant No.2 in the portion purchased by her had also passed to her. his sisters, namely the applicant and non-applicant No.2, to sell the same and that he was manager and had authority to deal with the property on their behalf. Non-applicant No.3 contended that by virtue of this representation made by non-applicant No.1, the shares of the applicant and non-applicant No.2 in the portion purchased by her had also passed to her. In the result, therefore, she prayed for a declaration that she had become absolute owner of the portion of the suit property purchased by her and in the alternative she claimed that in the preliminary decree for partition a direction be made to the effect that the suit property should be partitioned in such a way as to allot the portion of the property purchased by her to the share of non-applicant No.1. 5. On the basis of these pleadings certain issues were framed. One of the issues related to the contention of non-applicant No, 3 that on the death of Nandgopal, non-applicant No. I had become manager of the joint family consisting of himself and the applicant and non-applicant No.2. Another issue related to the contention that non-applicant No.1 had sold part of the property to non-applicant No.3 under the authority of the applicant and non-applicant No.2 and hence the sale to her was binding on these two parties. 6. The learned trial Judge decided all the issues which he had raised, by his judgment dated 21st December 1973. He rejected the above said contentions of non-applicant No.3 and held that the applicant and non-applicant Nos. 1 and 2 each had 1/3rd share in the suit property. However, he also held that non-applicant No.3 was entitled to a direction in the preliminary decree to allot the portion of the suit property purchased by her to the share of non-applicant No.1. A preliminary decree was, therefore, drawn in terms of this judgment on 31st December 1973. In this preliminary decree a direction was given for appointment of a Commissioner to partition the suit. 7. On 12th February 1974 the applicant moved the trial Court by her application purported to have been filed under Order 26, rule 13 of the Code for appointment of a Commissioner as directed in the preliminary decree. Accordingly a Commissioner was appointed. He submitted his report on 31st July 1974 proposing partition of the suit property between the applicant and non-applicant Nos. Accordingly a Commissioner was appointed. He submitted his report on 31st July 1974 proposing partition of the suit property between the applicant and non-applicant Nos. 1 and 2 in the light of the directions given in the preliminary decree with regard to the allotment of the portion purchased by non-applicant No.3 to the share of non-applicant No. 1. The applicant and non-applicant Nos. 2 and 3 informed the Court on 2nd August 1974 that they accepted the proposal of the Commissioner for the partition. However, on that day i. e. on 2nd August 1974, non-applicant No.4 herein filed his objection in writing to the proposals made by the Commissioner for partition of the suit property. It may be noted here that non-applicant No.4 was not party to the suit either before or after the preliminary decree was made and till the time he filed his objections. 8. In this objection non-applicant No.4 admitted that the suit property was owned by Nandgopal. He contended that after the death of Nandgopal, non-applicant No. I came in management of the said property and acted as the manager of the joint Hindu family and out of the suit property an open site admeasuring 16 feet x 30 feet situated in the north-east comer was sold to him by non-applicant No.1 acting as the manager of the family, for legal necessity under a registered sale-deed dated 21st November 1972 for a consideration of Rs. 6000. According to non-applicant No.4, the sale-deed has been executed by non-applicant No. I for himself and as manager of the joint family. Thus he contended that he was an alienee with respect to the said plot from the manager and one of the sharers and as such he was bona fide purchaser for value without notice. He further contended that since he was an alienee of part of the suit property, he was a necessary party to the suit for partition which had been filed by the applicant. According to him, the suit had been filed by the applicant in conspiracy with non-applicant Nos. 1 and 2 to his exclusion by practising fraud on him. Non-applicant No.4 further contended that the preliminary decree which had been passed in the suit was not binding upon him and probably what he meant was that the report of the Commissioner was .also not binding upon him. 1 and 2 to his exclusion by practising fraud on him. Non-applicant No.4 further contended that the preliminary decree which had been passed in the suit was not binding upon him and probably what he meant was that the report of the Commissioner was .also not binding upon him. He further submitted that in order to avoid further litigation and being a person interested in part of the suit property, he was filing his objection. He next contended that the report of the Commissioner was not acceptable to him for reasons which it is not necessary at this stage to go in. Suffice it to say that his contention was that in allotting shares to the respective parties to the suit, the Commissioner had exceeded his jurisdiction and that he had submitted his report and the proposals without making due enquiries. According to non-applicant No.4, the preliminary decree which had been passed, was illegal for want of all the necessary parties on record. He then submitted that the Commissioner should be directed to make due and proper enquiries in respect of his right and interest in the suit property and he should be directed to allot the portion purchased by him to the share of non-applicant No.1. 9. The applicant and non-applicant No.2 filed their replies to the objection submitted by non-applicant No.4 as above. The applicant contended that the objection was not maintainable inasmuch as non-applicant No.4 did not claim to be joined in the suit and that even if non-applicant No.4 had purchased the portion of the suit property from non-applicant No. 1, as contended by him, he was bound by the decree and the finding at which the trial Court had arrived, would ape rate as res judicata against him. The applicant further said that it was open to non-applicant No. 4. to' seek his remedy in due course of law in order to' seek adequate or proper relief to which he may be entitled to' as a transferee from non-applicant No. 1. Subject to' these contentions the applicant denied that non-applicant NO'. The applicant further said that it was open to non-applicant No. 4. to' seek his remedy in due course of law in order to' seek adequate or proper relief to which he may be entitled to' as a transferee from non-applicant No. 1. Subject to' these contentions the applicant denied that non-applicant NO'. r was acting as manager of the joint family and contended that the transaction of sale by non-applicant No. 1 to non-applicant No. 4 did not affect her right to' claim partition and the said transaction would not bind her and non-applicant No. 2 in view of the finding which had already been recorded by the Court while passing the preliminary decree. The applicant also submitted that even if non-applicant No.4 was entitled to be joined in the suit, he was bound by the finding given on issue No. 3 in the judgment which led to the preliminary decree. The applicant also contended that the question whether non-applicant No. 1 sold the portion of the plot to' non-applicant NO'. 4 for legal necessity could not be a subject matter of enquiry in the proceedings with regard to the abjection to the report of the Commissioner for partition. The applicant submitted that the parties to the suit, namely that she herself and non-applicant No’s. 1 to' 3 having accepted the report of the Commissioner, final decree should be drawn. These are the main contentions which were taken by the applicant to the objection filed by non-applicant No. 4 to the report of the Commissioner. More or less similar contentions were taken by non-applicant No.2. These replies came to' be filed an 16th August 1974 and 10th October 1974 by the applicant and non-applicant No. 21 respectively. 10. It appears that the parties were heard with regard to the objection of the Commissioner, an 4th November 1974 and the matter was fixed far passing order on 19th November 1974. However, in the meanwhile non-applicant No.4 presented an application on 7th November 1914 purporting to be under Order I, rule 10 read with section 151 of the Code. In this application he reiterated practically the same thing which he had done in the objection which he had taken to' the report of the Commissioner. He repeated that he was a necessary party to the suit which was for general partition and that the preliminary decree was not binding upon him. In this application he reiterated practically the same thing which he had done in the objection which he had taken to' the report of the Commissioner. He repeated that he was a necessary party to the suit which was for general partition and that the preliminary decree was not binding upon him. He even went to the length of saying that the preliminary decree was vitiated and was not valid for want of all necessary parties. He submitted that his interests were being affected and in order to avoid further litigation and to safeguard his interest, it was necessary that he should be joined as defendant in suit and should be allowed to take part in the proceedings and file his written statement on merits. He, therefore, prayed by this application that he should not only be added as party to the suit and allowed to file his written statement, but the preliminary decree should also be set aside. 11. The applicant and non-applicant No's. 1, 2 and 3 resisted this application of non-applicant No. 4 by filing their replies separately on 2nd December 1974. The tenor of these replies is in tune with the replies which the applicant and non-applicant No.2 had submitted to' the objection filed by non-applicant No.4 to the report of the Commissioner. It was contended that under the alleged sale by non-applicant No. 1 of some portion of the plot to him, non-applicant No.4 did not acquire a title to any specific portion of the suit property as he was purchaser from a joint owner and the sale of any specific portion of the plot would not be binding upon the other co-owners. The applicant specifically and categorically stated that she opposed the application for joinder of party and she did not want non-applicant No.4 to be joined as a defendant in the suit, as it would amount to reopening the whole case and practically setting aside the decree which had already been passed. The applicant submitted that it was open to non-applicant No.4 to prosecute his remedies against his vendor separately. Lastly the applicant submitted that non-applicant No.4 was aware of the proceedings in the suit from the very beginning and even then he did not come forward to put up his claim and allowed the case to proceed deliberately keeping the parties in dark about his alleged right. Lastly the applicant submitted that non-applicant No.4 was aware of the proceedings in the suit from the very beginning and even then he did not come forward to put up his claim and allowed the case to proceed deliberately keeping the parties in dark about his alleged right. Thus, according to the applicant, non-applicant No.4 had come at a belated stage with a request for being joined in the suit and hence for the reasons stated in the reply, the applicant prayed for dismissal of the application. 12. The learned trial Judge by his order dated 18th March 1975 disposed of the objection filed by non-applicant No.4 to the report of the Commissioner (Ex. 49) and his application for being joined as defendant (Ex. 58). It is not clear from the order passed by the learned trial Judge whether in his view non-applicant No.4 was a necessary party or a: proper party to the suit. However, the learned trial Judge thought it fit to allow non-applicant No.4 to come on record in-the suit as a defendant. On the question whether this could be done after the preliminary decree had been passed, the learned trial Judge was of the view that even though a preliminary decree had been passed, the suit does not come to an end till the final decree is passed and is still pending and hence a person could be joined as a defendant even after passing of a preliminary decree. The learned trial Judge then proceeded to consider if it was necessary to re-open the preliminary decree or whether it would suffice if direction is given to the Commissioner to allot the property purchased by non-applicant No.4 to the share of non-applicant No.1, as had been done in the case of non-applicant No.3. The learned trial Judge observed that the latter course could have been adopted, as, even according to the report of the Commissioner, sufficient portion remains to be allotted to the share of non-applicant No. 1 even after adjusting the claim of the non-applicant No.3. However, the learned trial Judge was of the view that this course could not be adopted mainly for the reason that non-applicant No.4 had contended that non-applicant No.1 had sold the property to him as manager of the joint family consisting of the applicant and non-applicant Nos. However, the learned trial Judge was of the view that this course could not be adopted mainly for the reason that non-applicant No.4 had contended that non-applicant No.1 had sold the property to him as manager of the joint family consisting of the applicant and non-applicant Nos. 1 and 2 and this contention had been resisted by the applicant and non-applicant No.2. According to the learned trial Judge, if non-applicant No.4 was successful in establishing his case in this respect, the property sold to him by non-applicant No.1 would not be available for partition and in that case the question of adjustment of equities would not arise. In this view of the matter, the learned trial Judge allowed the application of non-applicant No.4 under Order 1, rule 10 of the Code and re-opened the whole case so as to give non-applicant No.4 an opportunity to file his written statement and also to the applicant and non-applicant Nos. 2 and 3 to amend their pleadings, if necessary. In the view which he took, he thought that it was not necessary to decide at that stage the objection which non-applicant No.4 had taken to the report of the Commissioner. In the result, therefore, the learned trial Judge set aside the preliminary decree and directed non-applicant No.4 to be joined as defendant No.4 in the suit and also directed non-applicant No.4 to file his written statement and permitted the other parties to the suit to amend their pleadings after non-applicant No.4 would file his written statement. It is against this order that the present revision application has been filed by the applicant, who, as stated above, is the plaintiff in the suit. 13. Mr. Qazi, the learned counsel for the applicant, submitted that it was not open to the trial Court to have allowed non-applicant No.4 to come on record in this suit as a defendant after the preliminary decree had been passed, either as a necessary or a proper party to the suit. Mr. Qazi contended that once a preliminary decree is passed, the matters which are decided by that decree become final and hence a party cannot be added thereafter. Mr. Mr. Qazi contended that once a preliminary decree is passed, the matters which are decided by that decree become final and hence a party cannot be added thereafter. Mr. Qazi next submitted that even assuming that it was open to the trial Court to allow non-applicant No.4 to come on record as a defendant after the preliminary decree had been passed, it was certainly not open to the trial Court to set aside the preliminary decree and relegate .the whole matter to the stage of filing of the written statement by the parties to the suit. Mr. Qazi submitted that the question whether non-applicant No.1 had acted as a manager of the so-called joint Hindu family consisting of the applicant and non-applicant Nos. 1 and 2 was the subject matter of an issue in the suit and this issue had been answered in the negative by the trial Court at the stage when the preliminary decree was passed. According to Mr. Qazi, it would not be now open to non-applicant No.4 after this finding to contend that non-applicant No. 1 had acted as a manager of the joint family when he sold portion of the suit property to him, as this matter stood concluded by the said finding of the trial Court at the time of passing the preliminary decree and according to Mr. Qazi, by virtue of definition of the term "decree" as contained in sub-section (2) of section 2 of the Code and also by virtue of sub-section (2) of section 97 of the Code, this finding had become final and conclusive. 14. Mr. Wankhede, the learned counsel for non-applicant No.2 supported the submissions made by Mr. Qazi on behalf of the applicant. 15. Mr. L. Mohta, the learned counsel for non-applicant No.4, sought to support the impugned order on the ground that non-applicant No.4 was necessary party to the suit and on the language of sub-rule (2) of rule 10 of Order I of the Code, it was incumbent upon the trial Court to bring non-applicant No.4 on record as without his presence no effective decree can be passed. In the alternative Mr. Mohta submitted that in any ease the presence of non-applicant No.4 is necessary before the Court in order to enable it to effectively and completely adjudicate upon and settle all the questions which are involved in the suit. According to Mr. In the alternative Mr. Mohta submitted that in any ease the presence of non-applicant No.4 is necessary before the Court in order to enable it to effectively and completely adjudicate upon and settle all the questions which are involved in the suit. According to Mr. Mohta, even it" a preliminary decree is passed in a partition suit, the proceedings do not come to an end and are deemed to be pending till the final decree is passed. Mr. Mohta submitted that under the said sub-rule, the trial Court had power to join a party at any stage of the proceeding and since the suit had not come to an end and was pending on the date when the impugned order was passed, the trial Court was very much within its power to have allowed non-applicant No.4 to come on record. With regard to the re-opening of the preliminary decree, Mr. Mohta submitted that merely allowing non-applicant No.4 to come on record as a defendant, keeping the preliminary decree in tact would not be of any avail to him, inasmuch as his main contention was that the transaction of sale between him and non-applicant No. I was binding upon the applicant and non-applicant No.2, as this transaction had been entered by non-applicant No. 1 in his capacity as manager of the Joint family consisting of non-applicant No. 1 himself and the applicant and non-applicant No.2. According to Mr. Mohta, if this was the main contention of non-applicant No.4 and if he succeeded in establishing it, the question of bringing the property which is the subject matter of the sale into hotch-potch for partition would not arise and the final decree will have to be passed shorn of this property. In short, Mr. Mohta submitted that in order to effectually decide the contention which had been raised by non-applicant No.4 with regard to the power of non-applicant No. I to sell the property, it was necessary that the preliminary decree should be set aside and non-applicant No.4 should be given a chance to establish his case. Mr. In short, Mr. Mohta submitted that in order to effectually decide the contention which had been raised by non-applicant No.4 with regard to the power of non-applicant No. I to sell the property, it was necessary that the preliminary decree should be set aside and non-applicant No.4 should be given a chance to establish his case. Mr. Mohta further submitted that his contention that when a party i3 joined in the suit after the preliminary decree is passed, the latter can be re-opened so as to enable such party to establish its case, is strengthen by the provisions contained in sub-rule (4) of rule 10 of Order 1 of the Code, which requires that when a defendant is added, the plaint should be amended in such manner as may be necessary and the amended copies of the summons and the plaint should be served on the new defendant and also on the original defendant. In short, Mr. Mohta submitted that the learned trial Judge had acted very much within his jurisdiction when he passed the impugned order and hence it could not be interfered with by this Court sitting in revision. 16. On the arguments which have been advanced before me, two questions fall for consideration· in this revision application. The first is whether a person can be added or joined as a defendant in a partition suit under sub-rule (2) of rule 10 of order 1 of the Code, after a preliminary decree for partition has been passed. The second question is if that is permissible, whether the preliminary decree which has been passed before· that stage, can be set aside to enable such party to re-open the matters and issues which are already decided at the time of passing such a decree. 17. The second question is if that is permissible, whether the preliminary decree which has been passed before· that stage, can be set aside to enable such party to re-open the matters and issues which are already decided at the time of passing such a decree. 17. Sub-rule (2) of rule 10 of order 1 of the Code provides that the Court may, at any stage of the proceedings, either upon or without 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, be 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. It would, therefore, appear that the Court is empowered I to allow a person to be joined as a defendant in the suit, who ought to have been joined as such or whose presence before it is necessary in its opinion to enable it effectually and completely to adjudicate upon and settle all questions involved in the suit. Now upon the language of this sub-rule, the Court can do so at any stage of the proceedings. The question, therefore, is whether after a preliminary decree is passed and proceedings are taken for passing a final decree, it could be said that this is a stage in the proceedings in the suit. Now there are certain suits which are to be decided in two stages. As for example, suits for partition, dissolution of partnership or taking account or suits on mortgage. In such suits a preliminary decree is to be passed at the first stage in which questions regarding the rights of the parties are settled and decided. The other matters are then left for decision at the stage of the final decree and the whole matter is concluded after the final decree is passed. It is, therefore, clear that all the matters in controversy in the suits of this nature are not decided when a preliminary decree is passed. The other matters are then left for decision at the stage of the final decree and the whole matter is concluded after the final decree is passed. It is, therefore, clear that all the matters in controversy in the suits of this nature are not decided when a preliminary decree is passed. As already stated above, only question defining rights of parties are decided at a preliminary stage and rest of the matters are decided at a later stage, when the final decree is passed. If this is so, it is not difficult to see that the proceedings in the suit do not come to an end as soon as the preliminary decree is passed, as some questions still remain to be decided, for example, the division of the property by metes and bounds and allocation of the same to the respective shares of the parties to the suit in a partition suit. Hence it is not possible to hold that in a suit for partition, when a preliminary decree is passed, the suit itself is decided and is no more before the Court. Whatever proceedings are taken subsequent to the passing of the preliminary decree but before final decree is drawn up, would be proceedings in the suit itself and hence such stage would be a stage in a proceeding in the suit, as contemplated by sub-rule (2) of rule 10 of Order 1 of the Code. This view gains support from the observations of the Privy Council in Jadunath v. Parmeshwar1. Similar view has been taken in Swayamprakasam v. Vijayarangam2, Dinanath v. Nishikant3, Shagunchand v. Dattaram4, Kunjbihari v. Bendudhan Panda5 and Sd. Moyuddin v. A. Rahim6. A different view appears to have been taken by the erstwhile Courts of Judicial Commissioners of Nagpur and Oudh in Raghunath v. Shiolal7, Nemasa v. Motisa8, Benimadhao v. Yusuf9. The view taken in these cases has been affirmed by the Orissa High Court in Baman Chandra v Balaram10. In all these cases it has been held that though the power under Order 1 Rule 10 is wide enough it can ordinarily be exercised only in proceeding not concluded by a preliminary decree unless the person to be added is a subsequent transferee. In my opinion, such a rigid view of the said rule is not warranted by its language. In my opinion, such a rigid view of the said rule is not warranted by its language. If the rule permits addition of party "at any stage of the proceedings and if the suit continues to be pending even after the preliminary decree is passed till the passing of the final decree, there is no reason why a party should not be allowed to be added simply because a preliminary decree has already been passed. It is one thing to say that a party added after the preliminary decree would not be entitled to go behind it but it is quite a different thing to say that it should not be added because the preliminary decree is final with regard to matters adjudicated by it. Whether or not a party added at a stage after the preliminary decree is passed is entitled to get it reopened is altogether a different matter. There may be cases in which a party may have no objection to be brought on record subject to the preliminary decree so that he can agitate matters which do not necessitate going behind such decree or it may be necessary to add a party after the passing of the preliminary decree in order to adjudicate upon and settle questions to be decided at that stage of the suit. In my view such a blanket prohibition as has been laid down in the above said decisions cannot be read in the said rule. With respect, therefore, I do not subscribe to the view taken in the above said cases. Hence I hold that there is no bar to a party being added in a suit for partition at a stage between the passing of the preliminary and the final decrees. 18. However, the next question is whether it would be open to the Court to set aside the preliminary decree when it orders a person to be added as a defendant, in order to enable such person to re-open the matters which have already been decided under the preliminary decree. In the present case the question whether non-applicant no 1 acted as a manager of the joint Hindu family consisting of the applicant and non-applicant nos. 1 and 2, has already been decided in the negative at the time when the preliminary decree was passed. In the present case the question whether non-applicant no 1 acted as a manager of the joint Hindu family consisting of the applicant and non-applicant nos. 1 and 2, has already been decided in the negative at the time when the preliminary decree was passed. The question, therefore, for consideration would be whether this finding should be re-opened at the behest of non-applicant no. 4 if he is to be brought on record as a defendant after the stage of passing of the preliminary decree. For this purpose it is necessary to see as to what is the effect of passing a preliminary decree. This question came up for consideration before the Supreme Court in Venkata Reddy v Pethi Reddy11. In that case the Supreme Court was called upon to consider whether a preliminary decree passed in a partition suit is a final decision within the meaning of the first proviso to Section 28 (A) of the Provincial Insolvency Act. While dealing with this question, the High Court had observed that mere declaration of the rights of the plaintiff by a preliminary decree would not amount to a final decision, because, even if a preliminary decree is passed either in a mortgage suit or in a partition suit, there are certain contingencies in which such a preliminary decree can be modified or amended and would not, therefore, become final. In disagreeing with these observations of the High Court the Supreme Court held as follows: "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 or Civil Procedure as permit reversal, modification or amendment. Similarly, a final decision 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 a partition suit, is not a tentative decree but must in so far as matters dealt with by it are concerned, be regarded as conclusive. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must in so far as matters dealt 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. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provide that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree." These observations of the Supreme Court would clearly show that a preliminary decree passed in a partition suit is a final decision in so far as the matters contained therein are concerned. Now it is well settled that normally a Court would not exercise its power under sub-rule (2) of rule 10 of Order 1 of the Code to add a party to the suit after a final adjudication of the controversies in this suit. Thus, normally a party would not be added to the suit after the final decree is passed, inasmuch as it would be of no use, since it would not be possible for the Court to open the final decree in order to enable the added party to agitate the questions which have been already decided under the final decree. Thus, normally a party would not be added to the suit after the final decree is passed, inasmuch as it would be of no use, since it would not be possible for the Court to open the final decree in order to enable the added party to agitate the questions which have been already decided under the final decree. On the same analogy, therefore, it should not be permissible to add a party to the suit after a preliminary decree has been passed, if the addition of that party requires the preliminary decree to be re-opened to enable him to agitate the matters which have been decided under the preliminary decree, because, as has been observed by the Supreme Court in the case cited above, such matters become final decision of the Court. The matter would, however, be otherwise if the added party has no objection to come on the record subject to the matters which have been decided under the preliminary decree. In the present case, if non-applicant No.4 wants to come on record for the purpose of getting the equities adjusted in his favour, it would be permissible for the Court to bring him on record for that· purpose, because this has to be done under the final decree and the matter is still open even though a preliminary decree has been passed. However, if non-applicant No.4 wants to come on record to contest the whole suit on merits and particularly wants to establish his contention that non-applicant No.1 had sold the portion of the suit property to him in his capacity as manager of the joint family and for legal necessity, then in my view, it would not be permissible for the Court to bring him on record after the preliminary decree had been passed because, to this extent the preliminary decree is the final decision of the Court. 19. In this connection it would be useful to make reference to certain decisions. In Lakhmichand v. Kachubhai12, a person was allowed to be brought on record at a stage when the suit was for effecting partition by metes and bounds. But this was done on condition that he would be added as. a defendant in the suit "being bound by all the proceedings upto date". In Lakhmichand v. Kachubhai12, a person was allowed to be brought on record at a stage when the suit was for effecting partition by metes and bounds. But this was done on condition that he would be added as. a defendant in the suit "being bound by all the proceedings upto date". It is true that in that case no preliminary decree as such had been passed, because the suit had been decided under the provisions of Civil Procedure Code, 1882 under which there was no provision for deciding a partition suit in two stages, as has been provided for in the Code of 1908. It appears that in the partition suit which was instituted in 1891, a decree was passed on 5th April 1892. The plaintiff died in October 1893 leaving behind him a minor son, who attained majority on 7th February 1907. On 13th April 1908 this son made an application for appointment of a Commissioner to effect partition of the non-revenue paying immovable property, under section 396 of the Code of 1882. But this application was rejected by the Court on 20th November 1908, holding that the application was barred by time. The son, therefore, preferred an appeal to the High Court and in the appeal he withdrew his application for appointment of Commissioner to effect partition. Subsequently on 16th April 1910 he preferred an application under Order 26, Rule 13 of the Code of 1908 for issue of a commission to make partition according to the rights declared in the partition decree. This application was opposed by the defendants on the ground that it was not tenable, inasmuch as it was not made within the time allowed by law for substitution of the applicant's name as required by section 368 of the Code of 1882. The trial Court rejected this application on the ground that the suit had abated long before the application was presented and that the applicant had not established that he was prevented by sufficient cause from continuing the suit and the application did not contain any prayer for setting aside the order of abatement. The trial Court rejected this application on the ground that the suit had abated long before the application was presented and that the applicant had not established that he was prevented by sufficient cause from continuing the suit and the application did not contain any prayer for setting aside the order of abatement. On these facts a Division Beach of this Court observed that the suit had abated as soon as the Code of 1908 came into force, in so far as the deceased plaintiff was concerned and the application to set aside the abatement by adding his son as legal representative not having been made within 60 days as provided by Article 171 of the Limitation Act of 1908, was barred. However, the Division Bench all owed the son to be brought on record under the provisions of Order 1, Rule 1(j of the Code and also under the inherent power of the Court, as his presence was necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. However, while allowing the party to be added, a condition was put that he would be bound by all the proceedings upto date. It is true that in this cash the question whether the party should be added or not after the preliminary decree is passed, so as to enable him to agitate the matter which has been decided under that decree, did not arise inasmuch as there was no preliminary decree. However, it is' to be noted that even though the Division Bench allowed the party to be added under the provisions of Order 1,. Rule 10, it thought it fit not to re-open the matters which had been decided earlier and subjected the newly .added party to all the proceedings which had been taken up to that date. 20. Reference may also be had to a decision of the Madras High Court in Krishna Iyyer v. Subramania Ayar13. The facts of that case were more or less similar to the facts of the present case. There also the question was whether the person who bad purchased part of the joint family property should be, allowed to come on record after the preliminary decree had been passed. The facts of that case were more or less similar to the facts of the present case. There also the question was whether the person who bad purchased part of the joint family property should be, allowed to come on record after the preliminary decree had been passed. The High Court not only allowed the purchaser to be added as a party to the suit, but re-opened the preliminary decree in order to enable the added defendant to set up his case with regard to the transaction. In this connection, the Division Bench made the following observations : "No doubt in the present case as the 1st respondent had no opportunity of meeting the plaintiff's case in its earlier stages, it would not be fair to implead him as a party and, make him liable to the preliminary decree already passed without giving him an opportunity of meeting it. On the other hand, it is open to the Court to add a party and allow the prior proceedings to be re-opened so far· as he is concerned and we are now asked to allow this to be done rather than drive the plaintiff to another suit. There-ale circumstances in this case which seem to render the former course desirable." It appears that while arriving at this decision the Division Bench differed from the view taken by the learned Additional Judicial Commissioner of Nagpur in Raghunath v, Shiolal, relying on the ruling in Kaith v Butchor14. A perusal of the judgment of the Division Bench would indicate that it did not go into the question of finality attached to a preliminary decree. 21. A reference may also be had to the decision of a Single Judge of the Madras High Court in B.S. Swaminatha v. Alagarswami15. Here also certain creditors in a partition suit were brought on record after the preliminary decree had been passed. It is not clear whether the Court directed the preliminary decree to be set aside but while making these creditors as parties to}he suit, the High Court allowed both the parties opportunity to adduce evidence which they desired in support of the contentions advanced by them. With respect, it is difficult to see at that stlge of the suit this was supposed to be done. 22. This question came up before a Division Bench of the Andhra Pradesh High Court in Ramader v Chunduru16. With respect, it is difficult to see at that stlge of the suit this was supposed to be done. 22. This question came up before a Division Bench of the Andhra Pradesh High Court in Ramader v Chunduru16. It appears that in the peculiar circumstances of the case a Division Bench of the Andhra Pradesh High Court set aside the preliminary decree at the instance of a party who bad been impleaded after it was passed, but this appear s to have been done under the inherent powers of the Court. However, the effect of the decision of the Supreme Court in Venkata Reddy v. Pethi Reddy does not appear to have been considered in this case. The case proceeds on the assumption that the preliminary decree passed in that suit was not a final decision and could be set aside by the Court at, a later stage of the proceedings. 23. Apart from the cases whj8h 'have' been discussed 'above,' there does not appear to be any other case in which a view has been taken that a preliminary decree cart be set aside at the instance of a party who has been subsequently added to the suit. The view which l take, finds support from the decision of a Division Bench of the Kira1a High Court in Neelakantha Pillai v. Ayyappan Pillai17, In this case after considering the 'decisions of the Madras and Andhra Pradesh High Courts referred to above and also that of Orissa High Court in Baman v. Balaram, the Division, Bench took the following view: "After having given our anxious consideration to all aspects of the matter we are of opinion that (in cases such as suits for redemption or partition) where the passing of a preliminary decree is contemplated the power conferred under Order 1, Rule10 Civil Procedure Code is to be regarded as circumscribed by the provisions contained in Section 2 (2) and Section 97 of the Code. As pointed out by the Supreme Court in Venkata Reddi v. Pethi Reddi, Section 97, Civil Procedure Code clearly indicates that in respect of the matters covered by a preliminary decree, the said decree is to be regarded as embodying the final decision of the Court passing it. As pointed out by the Supreme Court in Venkata Reddi v. Pethi Reddi, Section 97, Civil Procedure Code clearly indicates that in respect of the matters covered by a preliminary decree, the said decree is to be regarded as embodying the final decision of the Court passing it. It will not therefore, be reasonable to 'understand' the provision in Order 1, Rule 10, Civil Procedure Code as empowering the impleadment of additional' parties in a suit in Circumstances which would necessitate the ripping open of the determination made in the preliminary decree 'already' passed in the suit. However, one can very well conceive of several situations where an impleadment of an additional party may 'be asked for or may' be considered by the Court to be necessary for a proper and complete adjudication of the matters in controversy in such a suit and such impleadment would not involve the reopening of matter's already finally settled by 'the preliminary decree. The correct legal' position in our opinion is that while 'the passing of a preliminary decree in a suit for partition or redemption will not ipso facto operate as a total bar against the addition of any new parties to the action the impleadment of additional parties subsequent to the passing of the preliminary decree is permissible only if none of the questions already settled by the preliminary decree would have to be reopened by the Court as a consequence of such impleadment the addition of parties can be allowed at that stage only on condition that the further proceedings to be taken in the suit will be only on the basis of the preliminary decree already passed, and none of the questions settled by the preliminary decree will allowed to be reagitated on the ground that the person newly impleaded was not before the Court at the time of the passing of the I preliminary decree: As to whether or not the impleadment of a new party should be allowed on the aforesaid conditions in the circumstances of a particular, case will have to be considered by the Court on the merits of each case as and when the said question arises. No party, should be impleaded against his will if that would involve his being subjected to the terms of a preliminary decree which was passed without his being on the party array, particularly when there art' pleas which the said party could have put forward in respect of the matters considered and settled by the preliminary decree." I find myself in respectful agreement with the' view taken by the Division Bench of Kerala High Court in the above said case and, in my opinion, it lay down the correct law on the point under consideration. 24. The result of the discussion above would be that though non-applicant no. 4 can be legally added as a defendant in the suit, it would not be permissible to set aside the preliminary decree and reopen the whole suit to enable him to agitate his contention with regard to the power of non-applicant no. I to dispose ot part of the suit property. In this view of the matter, the learned trial Judge was right in allowing non-applicant no. 4 to be brought on record but he was not right in setting aside the preliminary decree so as to enable non-applicant no. 4 to establish his contention that non-applicant no. I had sold the suit property to him in his capacity as the manager of the joint family. Hence the learned trial Judge could have allowed the application of non-applicant no. 4 only to the extent that he would be joined as a party defendant in the suit but he should not have set aside the preliminary decree at his instance and to that extent the learned trial Judge was not right. The question then is whether non-applicant no. 4 should be allowed to come on record subject to the condition that he would be bound by the preliminary decree, though it would be open to him to contend with regard to the allotment of the property which he has purchased from non-applicant no. 1 to the share of the latter, because, this question is still open and equities of the parties will have to be adjusted in the final decree. In view of the reasons which non-applicant no. 4 has advanced in his application at Ex. 1 to the share of the latter, because, this question is still open and equities of the parties will have to be adjusted in the final decree. In view of the reasons which non-applicant no. 4 has advanced in his application at Ex. 58, for being added as a party to the suit, no useful purpose would be served by his being brought on record subject to the condition which I have mentioned above. However, Mr. Mohta, the learned counsel for the non-applicant no. 4, submitted that the latter has no objection to being brought on record on condition that he would be bound by the preliminary decree. In view of this submission, I think that non-applicant no. 4 should be allowed to be joined as a defendant in the suit subject to the above said condition. 25. In the result, therefore, the revision application is partly allowed and the order passed by the lower Court is modified to the effect that non-applicant no. 4 would be added as a party to the suit and it would be open to him to take such contentions as are open to him without affecting the preliminary decree and subject to it. However, the order passed by the lower Court with regard to the setting aside of the preliminary decree and allowing non-applicant no. 4 to file his written statement to the suit is hereby set aside. In the circumstances of the case, there shall be no order as to costs. Revision Application partly allowed.