JUDGMENT : S. K. Jha, J. – This is an application by plaintiff no. 2 of Title suit no. 91/10 of 1971/75 of the Court of the 1st Additional Subordinate Judge, Begusarai. The impugned ORDER :is that dated 31.8.1979. 2. The facts are very short and simple. There are six plaintiffs. Plaintiff no. 1, being the father and the remaining five plaintiffs being the sons, plaintiff no. 2, as has already been stated above, is the petitioner and the remaining plaintiffs are opposite 1st party. We are not concerned in this case with the defendants because the dispute is amongst the plaintiffs inter se. 3. A suit for partition was instituted in which ail the six plaintiffs, claimed joint takhta to be carved out in their favour on determination of their due share in the joint family properties. A preliminary decree was duly passed. While the proceedings for preparation of the final decree were going on the opposite 1st party filed an application that a separate takhta be carved out in the name of the petitioner, plaintiff no. 2, for some reason or the other. This prayer was allowed by the court below even without hearing the petitioner. 4. The ORDER :is palpably without jurisdiction. It is a well settled principle of law that the final decree of the executing court cannot go beyond the preliminary decree. All the six plaintiffs had claimed a joint share in the properties in dispute and a joint preliminary decree was passed in their favour at the stage of final decree but it could not lie in the mouth of opposite 1st party to say that a separate takhta be carved out for the petitioner. 5. Mr. Lakshman Saran Sinha, learned counsel for the opposite 1st party placed reliance on the decisions for the proposition that the preliminary decree can be varied even during the stage of the preparation of the final decree under ORDER :20 Rule 18, of the Code of Civil Procedure. One such decision is that of the Supreme Court in the case of Phoolchand and another vs. Gopal Lal (AIR 1967 Supreme Court 1470). I am afraid the principle contended for by Mr. Sinha is not the principle which is applicable to the present case. One such decision is that of the Supreme Court in the case of Phoolchand and another vs. Gopal Lal (AIR 1967 Supreme Court 1470). I am afraid the principle contended for by Mr. Sinha is not the principle which is applicable to the present case. In the Supreme Court case one of the parties had died during the preparation of the final decree and there arose a dispute as to the share of the deceased joint member and that was the matter to be decided by the court which was proceeding with the preparation of the final decree in ORDER :to ascertain as to in whose share and in what proportion the share of the deceased member would fall. The principle is entirely distinct in the instant case. There is no controversy with regard to the share of any of the parties devolving upon any parties on account of unforeseen contingency. That case therefore, does not help the opposite 1st party. The next case that was relied upon by Mr. Sinha was AIR 1980 Patna 201 : 1980 PLJR 259 (Indradeo Prasad Singh and another vrs. Sheonath Singh and others), a decision of the Full Bench of this Court. There the question was as to whether the question of mesne profits could be gone into while finally passing the final decree and it was held that it could be so done under ORDER :20 rule 18 of the Code of Civil Procedure. Neither do the facts nor does not (sic) the principle of that case bear any analogy to the facts of the instant case. 6. Mr. Sachchidanand Jha, Learned counsel for the petitioner, rightly pressed into service the decisions in the case of Noor Zamand Khan vrs. Mosammat Maimunnisaa Bibi and others (AIR 1958 Patna 228 and in the case of Kalloo and another vrs. Niadar Singh and another (AIR 1929 Allahabad 252). 7. I, therefore, hold that the impugned ORDER :is patently without jurisdiction. The application is thus allowed and the impugned ORDER :is set aside, but there shall be no ORDER :as to costs. 8. Let the proceedings for the preparation of the final decree be continued with quick despatch.