JUDGMENT : G.B. Pattnaik, J. - Defendant No 1 and her children (defendants 1-Ka, 1-Kha and 1-ga) are the petitioners challenging the order dated 21.10.1982 rejecting the application of the petitioners filed u/s 4 of the Partition Act. The suit for partition was decreed on. 1 9 1976 and thereafter in course of the final decree proceeding, the Commissioner submitted a report which was accepted by the Court on 19.4.1982. The application by the petitioners u/s 4 of the Partition Act was filed on 30 8.1982. The only ground on which the said application has been rejected is that the final decree proceeding is virtually closed and, therefore, an application u/s 4 of the Partition Act cannot be entertained. 2. Mr. Misra appearing for the petitioners contends that the final decree must be held to be continuing even though no objection to the Commissioner's, report had been filed and the said report had been accepted, inasmuch as the decree has not been finally signed and sealed. Mr. S. Misra-ll, the learned counsel for the opposite parties, on the other hand, contends that for all practical purposes, the final decree proceeding must be held to have been closed since there was nothing further to be done and signing and sealing is merely a clerical job. 3. There is no dispute that an application u/s 4 of the Partition Act can be filed in course of the final decree proceeding. In the case of Birendra Nath Banerjee Vs. Sm. Snehalata Devi and Another it has been held that the right of pre-emption u/s 4 of the Partition Act is a right given by the statute and on its wording, it subsists so long as the suit remains pending, or, in other words, so long as the suit has not been concluded or terminated by an effective final decree for partition. In the case of Harendra Nath Mukharjee Vs. Shyam Sunder Kuer and Others, a Bench of the Patna High Court considered the provisions of Section 4 of the Partition Act and as to the stage at which an application under the said section could be filed. In paragraph 11 of the judgment. Their Lordships said: ...An application u/s 4 can be made at any stage of the suit. Shyam Sunder Kuer and Others, a Bench of the Patna High Court considered the provisions of Section 4 of the Partition Act and as to the stage at which an application under the said section could be filed. In paragraph 11 of the judgment. Their Lordships said: ...An application u/s 4 can be made at any stage of the suit. Simply because an application has been filed u/s 4 after the passing of the final decree, it cannot be said that it is not maintainable on the ground that the executing Court cannot go behind the decree. ..." After hearing the counsel for both parties and after perusing the records of the case, I am of the opinion that the final decree proceeding must be deemed to be pending on 29/30.8.1982, the date on which the application u/s 4 of the Partition Act was filed by the petitioners. Accordingly, the Court below was in error in rejecting the said application as not maintainable. 4. In the result, the order dated 21.10.1982 is quashed and the application filed u/s 4 of the Partition Act must be dealt with on its own merits. This Civil Revision is allowed, but in the circumstances, there will be no order as to costs. Final Result : Allowed