Judgment This Rule is directed against an ardor of the learned Subordinate Judge, 4th Court at Alipore dismissing Misc. Case No. 60 of 1976 arising out of an application under S.47 of the Code of Civil Procedure. 2. This case has a chequered career and accordingly 1 consider it not necessary to refer in details to the facts leading to the present Rule. In course of the judgment I shall refer to only such facts as may be found necessary for the disposal of the present Rule. 3. One Nabin Krishna Mitra who was the original owner of the suit property died on May 14, 1929 leaving behind him his widow Khiroda mohini Dassi as his sole heir under the Hindu Law. Said Nabin Krishna also left at his death five daughters namely, Nripendra Bala, Lilabari, Pravati, Usha Rani and Shailabala. Said Khiroda Mohini while in possession of those properties executed a deed of gift sometime in 1937 in favour of her five daughters named above and she later died on September 1, 1945. In the mean time said Lilabati died sometime in 1944 leaving behind her as her heirs the opposite parties Nos. 1to 6 who are the decree holders. Be it noted here that said Nripendra Bala died on June 20, 1948. After the death of Khirodamohini three of her daughters, namely. Prabhavati, Usha Rani and shailabala executed a deed of gift on October 30, 1945 whereby 4 Annas out of their the then 12 annas share of the properties which they received from their mother under the said deed of gift executed by her was given to the laid opposite parties Nos. 1 to 6. Said Usha. Rani brought sometime in 1946 a partition suit being Title Suit No. 28 of 1946 in the 3rd Court of the Subordinate Judge at Alipore (which on being transferred to the 2nd Additional Subordinate judge's Court was re-numbered as Title Suit No.10 of 1948). That Title Suit No. 10 of 1948 was decreed in a preliminary form. Be it noted that there was an earlier partition suit brought by said Lilabati. That earlier partition was originally numbered as T.S. No. 15 of 1938 and on being transferred to the 3rd Additional Court of Subordinate Judge at Alipore it was re-numbered as Title Suit no. That Title Suit No. 10 of 1948 was decreed in a preliminary form. Be it noted that there was an earlier partition suit brought by said Lilabati. That earlier partition was originally numbered as T.S. No. 15 of 1938 and on being transferred to the 3rd Additional Court of Subordinate Judge at Alipore it was re-numbered as Title Suit no. 15 of 1940 In the laid later suit being Title Suit No. 10 of 1948 it was held that the decision in the said earlier. Title Suit could not operate as res judicata so far as the said. Title Suit No. 10 of 1947 is concerned inasmuch as the suits were brought on two different causes of action. From the decision in laid Title Suit No. 10 of 1948 Gostha Behari Ghosh, present petitioner and his brother Gobinda das Ghosh both of whom were sons of said Nripendra Bala preferred an appeal being F A. No. 208 of 1948 as their mother said Nripendra Bala died after the passing of the preliminary decree sometime in 1948. In said F.A. No. 208 of 1948 it was held that the sons of deceased Nripendra Bala, namely. Gostha Behari Ghosh and Gobinda das Ghosh were not entitled to challenge the decree for partition as their mother had only a limited interest in the suit property which would ensure during her life-time. In this view of the matter this Court in FA. No. 208 of 1948 affirmed the decision of the trial court with certain modifications The decree for accounts was set aside and the question of compensation for improvement was left open thereafter a solahanama was filed in the titles Suit No. 10 of 1948 praying for the passing of a final decree in terms of the Solahnama and the map attached thereto. The final decree was accordingly passed in terms of the Solahnama. The decree-holders put the final decree into execution in Title Execution Case No. 11 of 1954. That Execution Case on being transferred to the Court of 4th Subordinate' Judge at Alipore was re-numbered as Title Execution Case No. 19 of 1958 In the said Execution case there were several successive application made under S. 47 of the Code of Civil Procedure by the present petitioner. The impugned order is one that was made on the last of those applications under S. 47 of the Code of Civil procedure. 4. The impugned order is one that was made on the last of those applications under S. 47 of the Code of Civil procedure. 4. Mr. C.N. Mukherjee, learned Advocate appearing in support of the petitioner contended that the learned Subordinate Judge acted illegally and with material irregularity in refusing to take into consideration the event that happened after the passing of the decree in question and to hold that the decree became in executable. What Mr. Mukherjee means to say is that on the death of Shailabala, the last of the daughters of said Nabin Krishna, the property in question reverted to the reversionary of said Nabin Krishna and accordingly after the death of Shailabala the decree-holders who are the sons of said Lilabati could not have the same share in the suit property which they got under the decree. By reason of the subsequent even referred to above there might have been some increase or diminution in the there of the decree-holders. Now the question is whether in such circumstances it would be open to the executing Court to determine afresh what share the decree holders did have in the suit property at the time when the decree is sought to be executed. In support of the arguments advanced on behalf of the petitioner, Mr. Mukherjee places reliance on the decisions in Chhoti Narain Singh v. Msstt. Rameswar Koer @ Dhulhin Shaheba, Executrix of the will of late Rajkumari Ratan Koer, 6 CWN 796; and Vidya Sagar v. Sm. Sudhesh Kumari & Ors AIR 1975 SC 2295 . In the case of Chhoti Narain Singh (supra) it is laid down that a contract made between the parties to a suit in derogation of a decree which may be passed in future cannot form the subject of an enquiry under S. 244 of the Code of Civil Procedure of 1882 (corresponding to S. 47 of the Code of Civil Procedure. 1908) but an agreement not to executes a decree if it is entered into after the passing of the decree can be given effect to in an execution proceeding. This decision cannot have any application to the fact and circumstances of the present case because there is no agreement entered into between the parties subsequent to the passing of the decree and therefore there is no question of any such agreement being given effect to by the executing Court. This decision cannot have any application to the fact and circumstances of the present case because there is no agreement entered into between the parties subsequent to the passing of the decree and therefore there is no question of any such agreement being given effect to by the executing Court. On the strength of the decision Mr. Mukherjee however, argued that events happening subsequent to the decree should be taken into consideration by the executing Court and that in the present case therefore the executing court after taking the fact of the death of maid Shailaba Into consideration should have refused to execute the decree. Even though on the strength of the decision in Chhoti Narain’s case (supra) it be conceded that as a general rule an executing Court may take into consideration events happening subsequent to the passing of the decree discussions that will follow will make it clear that having regard to the special nature of a partition suit that general rule shall have no application to a case whereby reason of death occurring after final decree there is an increase or diminution in the shares of the respective parties. In the case of Vidya Sagar (supra), a. decree which was obtained prior to the enforcement of the Uttar Pradesh Zem iadari Abolition and Land Reforms Act 1950 was sought to be put into execution after the enforcement of that Act. That Act provided for the extinguishment- of the right of pre-emption in the area to which the Ace applied. In these circumstances it is held that the decree became incapable of execution and the reasons for so holding would appear clearly from the following would appear clearly from the following words quoted from that decision : "The appellants in execution sought for possession basing his right under the decree. The decree was on the basis that he was a co-sharer of certain intermediaries interest in the land in question along with vendors namely, his co-sharers, Since, however, on and from July 1, 1970, all rights and title in that proprietary land ceased to exist and vested in the State, the decree to that extent became devoid of substance inasmuch as the proprietary interest with regard to which alone the decree was passed had vested in the State and nothing survived in favour of erstwhile proprietor’s the appellant or the vendors. The appellant could execute the said decree for delivery of possession only on the basis that he had the proprietary right in the land on the basis of which, as a co-sharer therein, he had obtained the decree of pre-emption. Now, since there is vesting of the property under the Act and emergence of a new species of property which was not even the subject matter of the decree, the present decree becomes incapable of exaction. 5. Thus, it appears from what is stated above that in the case of Vidya Sagar(supra), their Lordships of the Supreme Court found the decree to have became incapable of execution, for, the subject-matter of the decree became extinct by reason of the operation of the Uttar Pradesh Zamindari Abolition Act which event took place after the passing of the decree. Thus, there may be cases where the executing Court ought to take into consideration events which happened subsequent to the passing of the decrees. The case decree became extinct and does not therefore attract the operation of the principle laid down in Vidya Saratg’s case (supra). Now, the question is whether in the circumstances of the present case and in view of the happening of the death of Shailabala the executing Court would be justified in taking into consideration the variation in the share of the decree holders and/or judgment-debtors. 6. Mr. C.N. Mukherjee, learned Advocate for the petitioner in support of the arguments advanced by him as aforesaid also relied on Rattanmal s/o Pohumal & Anr. v. Budhalshah Khudobuxah AIR 1946 Sind 99. It was held in that case that if events happened since the passing of the decree and shares are varied by reason of those events, the executing Court in giving effect to that variance is not going behind the decision of the Court which passed the decree. With due deference to the learned Judge who decided Rattanmal’s case (supra) I find it difficult to accept the principle laid down by him and the reasons therefore will appear from the discussions that will follow. 7. Mr. With due deference to the learned Judge who decided Rattanmal’s case (supra) I find it difficult to accept the principle laid down by him and the reasons therefore will appear from the discussions that will follow. 7. Mr. Sakti Nath Mukherjee, the learned Advocate appearing on behalf of opposite party No.2 argued that even though the executing Court could take into consideration events happening subsequent to the passing of the decree in some cases, in the case of a final decree passed in a partition suit the executing Court cannot either refuse to execute the decree or modify the decree on the death of any person resulting in the variation of the shares of the parties to the suit. In a suit for partition the shares of the parties to the suit are declared by the Court by passing a preliminary decree and by the final decree the work of allotment of specific portion of the property to different co-owners is made complete. If by reason of death happening subsequent of the passing of the final decree there is a change brought about in the shares of the respective parties the Court which passed the final decree would be not within its powers to re-open decree. If, however, death occurs after the passing of the preliminary decree the Court which is still then in seisin of the matter may take not of the death and pass a second preliminary decree on the basis of the change brought about by the death. This, however, the Court cannot go on doing interminable and the power of the Court to effect alteration in the shares on the basis of deaths would terminate with the passing of the final decree. When after the passing of the Court is helpless in the matte. In Phool Chand & Anr. This, however, the Court cannot go on doing interminable and the power of the Court to effect alteration in the shares on the basis of deaths would terminate with the passing of the final decree. When after the passing of the Court is helpless in the matte. In Phool Chand & Anr. V. Goipal Lal AIR 1967 SC 1470 , Their Lordships of the Supreme Court while recognizing the peculiar nature of a partition suit held as follow : "So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; and if there is a dispute in that behalf, the order of the Court deciding that dispute and making variation is shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should, however like to point out that what we are saying must be confined to partition suits, for, we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. We should, however, like to make it clear that this can only be done so long as the final decree has not been passed." 8. As already pointed out, the trial Court which till the passing of the final decree in a suit for partition could take not of any death which brings about alteration in the shares of the parties and thus pass a fresh preliminary decree ceases to have such power the moment the final decree is passed. The executing Court which cannot go behind the decree cannot claim to have powers greater than those of the trial Court. 9. Thus, even though in proper cases the executing Court may take not of events happening subsequent to the passing of the decree, by reason of the peculiar nature of a partition suit, it would not be competent for the executing Court to either refuse to execute a decree or to modify the same on the ground of alteration in the shares of the respective parties by reason of death occurring subsequent to the passing of the decree. The decision in Shivaramalah v. Mallikarjunatah & Ors. AIR 1978 Karnatak 76. proceeds on the said principal laid down, in Phool Chand's case (supra). 10. Mr. The decision in Shivaramalah v. Mallikarjunatah & Ors. AIR 1978 Karnatak 76. proceeds on the said principal laid down, in Phool Chand's case (supra). 10. Mr. C.N. Mukberjee further argued that even though the petitioner did not have any interest in the suit property at the time when the final decree was passed, be subsequently acquired some interest in the suit property by reasons of the deaths of Prabhavati, Usha Rani and Shailabala which event took place after the passing of the final decree and that the executing Court should have taken note of such events and either refused to execute the decree or should have ascertained for itself the shares which the parties, subsequently became entitled to I find it difficult to accept this contention of Mr. C.N. Mukherjee. If subsequent to the passing of the final decree the judgment debtor acquires any interest in the suit property be bas a cause of action for a suit but be cannot, as has already been pointed out require the executing court to the note of the subsequent deaths. 11. Mr. C.N. Mukherjee further argued that a suit by the petitioner to recover the share to which he became entitled by reason of the deaths of the three daughters of the original owner referred to above, would be based by the provisions of S. 47 of the Code of Civil Procedure. When subsequent to the passing of the final decree in a partition suit any event including the death of any person happens which bring, about a change in the shares of the parties concerned a separate suit would lie, for, there is a fresh cause of action arising out of the happening of the event This was also the view taken in Shivaramalah v. Mallikarjunatah & ors. (supra). (supra). There it is held that if shares get altered as a result of the death of any of the parties after the Deputy Commissioner completed the process of partition the Civil Court which made the decree under Order 20 Rule 18 of the Code of Civil Procedure cannot be approached for the purpose of adjustment of the share of the parties in the very same proceedings and that in such a case the parties may have to seek relief in a separate suit in so deciding their Lordships of the Karnataka High court placed reliance on the decision in Phool Chand & Anr. (supra) and Parsuram Rajaram Tiwari v. Hira Bai Rajaram Tewari, AIR 1957 Bom 59 12. The learned Subordinate Judge in the present case was not therefore wrong in holding that in the circumstances of the case the petitioner was to bring a fresh suit. 13. Mr. Sakti Nath Mukherjee on behalf of opposite Party No.2 argued that the last application made by the petitioner under S.41 of the Code of Civil Procedure giving rise to the Misc. Case No. 60 of 1976 was barred by the principles of res judicata. It was the settled law that even though the provision of S.11 of the Code of Civil Procedure did not in terms apply to execution proceedings the general principles of res judicata and also of constructive res Judicata were applicable to education proceedings. That was previously the law laid down by the decisions of Court. But now after the amendment of S.11 of the Code of Civil Procedure effected in 1976 by inclusion of Explanation VII the aforesaid principle laid down by adjudication was incorporated in S.11 itself. Even after the death of Shailabala there was an application under S.47 made prtor to the present application under S.47 of the code of Civil Procedure and the Misc. Case arising out of that application was dismissed. In these circumstances I cannot but agree with Mr. Sakti Nuth Mukherjee that the present application under S.47 of the Code of Civil Procedure was not maintainable. 14. After the said Misc. Case No. 60 of 1976 was started on the basis of an application under S. 47 of the Code of Civil Procedure thus was an application for stay of execution filed in that Misc. Sakti Nuth Mukherjee that the present application under S.47 of the Code of Civil Procedure was not maintainable. 14. After the said Misc. Case No. 60 of 1976 was started on the basis of an application under S. 47 of the Code of Civil Procedure thus was an application for stay of execution filed in that Misc. case but that application for stay of execution wall rejected and subsequently possession of the suit property was taken in execution of the decree in question. Accordingly, the question that arises is whether after full satisfaction was entered and the possession of the suit property was obtained by the decree-holders restoration of possession can be asked for under S.47 of the Code of Civil Procedure. As all the questions raised before me on behalf of the petitioner fail and the Rule ought to be discharged I consider it needless to go into the quotation whether under S.47 of the Code of Civil Procedure the executing Court has power to order restoration of the property which the decree holders got in execution of the decree. 15. Be it noted that the learned lawyers representing other appetite parties adopted the arguments of Mr. S.N. Mukherjee. 16. As all the contentions of Mr. C.N. Mukherjee fail and as I find no reasons to interfere the Rule is discharged with costs. Hearing fee assessed at 5 Gms. Rule discharged.