JUDGMENT Sankari Prasad Das Ghosh, J. The main point for consideration in this appeal, or revisional application, in the alternative, is whether s 4 of the Partition Act, 1893 can be attracted to a sale to a stranger of a share of a dwelling-house by a member of an undivided family, after passing of a final decree in a suit for partition brought by a co-sharer against other members of that undivided family. 2. The facts leading to the filing of the appeal, or revisional application, In the alternative, may be stated as follows : Premises No. 56/10, Kashinath Dutta Road, Calculta-36 (hereinafter called the "dwelling-house") belonged to one Purosuttam Halwai governed by the Mitakshara School of Hindu Law Purosuttam died, leaving three sons, Mulchand Halwai, Lakshman Halwai and Ramjatan Halwai. These three sons of Purosuttam transferred the dwelling house along with other properties by way of registered deed of gift to their respective wives, namely Janaki Devi, Munni Devi and Sumarla Devi. As there was inconvenience in joint possession of the dwelling house, Janaki Devi filed a suit, being Title Suit no. 41 of 1963, in the court of the learned Subordinate Judge. Fifth Court at Aliport against Munni Devi, Sumaria Devi and others for partition of the dwelling house and other properties. That Title Suit no. 41 of 1963 was filed on 8.7.63. A preliminary decree on compromise was recorded in that Title Suit on 27.1.67. Thereafter, a Commissioner was appointed to effect partition of the dwelling house by metes and bounds between the parries. The Commissioner divided the dwelling house into three blocks viz. Block A, Block B and Block C By an order passed by the learned Subordinate Judge, Fifth Court, Alipore on 10.11.76, Block A in the dwelling-house was allotted to Janaki without any objection by the other co-sharers of that house. The final decree was thereafter passed in that suit for partition on 24.4.79 Janaki filed Title Execution Case no. 6 of 1980 in the court of the learned Subordinate Judge, Fifth Court, Alipore, for delivery of possession of Block A of the dwelling house on partition of the same by meter and bounds. She died subsequently on 17.10.81. The final decree was thereafter passed in that suit for partition on 24.4.79 Janaki filed Title Execution Case no. 6 of 1980 in the court of the learned Subordinate Judge, Fifth Court, Alipore, for delivery of possession of Block A of the dwelling house on partition of the same by meter and bounds. She died subsequently on 17.10.81. Prior to her death, she executed a deed of settlement and trust in favour of her brother, Ganesh Prasad Gupta in respect of 1.44 Cottahs approximately, more or less, in her 1/3rd share of the dwelling house butted and hounded on the South by Block C and on the East by Block B of the dwelling house. Thereafter, Ganesh sold Block A to Smt Sarada Verma by a registered deed of sale dated 20.12.82 Smt Sarada Verma, the respondent no. 1. filed an application for substitution in the Title Execution case. Her application was allowed Subsequently on 2.8.85, Munni Devi, the wife of Lakshman filed a petition in the court below under s 4 of the Partition Act, 1893 (hereinafter called the "Act") for sale of the portion of the dwelling-house purchased by the respondent no. 1 to her on the ground that Surada was not entitled to possess the dwelling house as she was a stranger to the family and the privacy of the family would be disturbed if she was allowed to possess the dwelling house. Muuni Devi died subsequently in December, 1983. The appellants were substituted as her heirs and legal representatives Sarada Verma filed a petition of objection to the petition under s 4 of the Act. That petition under s. 4 of the Act was also under s 47(b) read with Order 20 Rule 14 of the Code of Civil Procedure. One witness Rajendra Prasad Gupta, a son of Munni Devi, was examined as P.W. 1 in the Misc case arising out of the petition under 4 of the Act. No other witness examined in the Misc. Case, which was subsequently dismissed by the learned Subordinate Judge, Fifth Court, Alipore on the ground that the petition under s 4 of the Act filed in course of the execution proceeding in Title Execution Case no. 6 of 1980 after the passing of the final decree. In the Title Suit no. 41 of 1963, was not maintainable. Case, which was subsequently dismissed by the learned Subordinate Judge, Fifth Court, Alipore on the ground that the petition under s 4 of the Act filed in course of the execution proceeding in Title Execution Case no. 6 of 1980 after the passing of the final decree. In the Title Suit no. 41 of 1963, was not maintainable. Being aggrieved, the heirs and legal representatives of Munni Devi have filed an appeal they have also filed a petition under s 115 CPC for treating the proceedings as a revisional application, in the alternative. 3. An order rejecting an application for sale under s 4 of the Act cannot be deemed to be a decree under s 8 of the Act and is not, therefore, appeal-able (see Nitish Chandra v. Promode Kumar, 56 CWN 375 ; Bhuban Mohan v. Brajendra, 45 CWN 74). As such, this proceeding will henceforth be taken as revisional application. 4. Mr. Dasgupta has challenged the order of the learned Subordinate Judge that the petition under s 4 of the Act is not maintainable for being filed in course of the execution proceeding after the passing of the final decree Mr. Verma, the learned Advocate for the opposite party, Sarada Verma, has raised various contentions According to him, the revisional application is to be dismissed as it suffers from mis-joinder and non-joinder of parties. Mr. Verma contends that the house is not a dwelling-house that the opposite party, Sarada Verma, is not a stranger to the family and that Sarada, who is a tenant in respect of a petition of Block A, did not purchase any share in the house but had purchased Block A after the passing of the final decree, allotting Block A to Janaki without any objection by the other co-sharers. According to him, there was division of the dwelling house on 10.11.76 when Block A was allotted to Janaki without any objection of the other co-sharers by the order of the Court. 5. Before considering the question of maintainability of the petition under s 4 of the Act it is to be stated that the contention of Mr. Verma that the house is not a dwelling house cannot be accepted. 5. Before considering the question of maintainability of the petition under s 4 of the Act it is to be stated that the contention of Mr. Verma that the house is not a dwelling house cannot be accepted. It is no doubt true that in her objection to the petition under s 4 of the Act, It was alleged by the opposite party that there were 8 families of different States of India in the house and that several businesses were also being run in that house. It was further stated in that petition of objection of the opposite party that a school for girls was also run by the State of West Bengal in a portion of the house. Even assuming these averments in the petition of objection to be correct, though there is no evidence in the matter, the fact remains that even in the plaint of Title Suit no. 41 of 1963 filed by Janaki for partition of the dwelling house and other properties, it was alleged by Janaki that the dwelling house was a joint family residence. The evidence of PW 1 in cross-examination denying that the suit premises is dwelling house cannot do away with the case of Janaki, predecessor-in-interest of the opposite party in the plaint of the Title Suit no. 41 of 1963, chat the house is a joint family residence PW 1 has also stated that Sumaria resides in the suit premises and that he, Dilip Gupta, Ranjan Gupta and his married sister also come to the house occasionally. He has further stated that Ganesh Praosad Gupta, brother of Janaki, is a member of their family. According to the opposite party, Janaki gave Block A of the house to her brother, Ganesh Prasad Gupta, by a deed of settlement and trust dated 3.12.79. If Sumarria used to live in the house, if the petitioners used to come to the house occasionally and if Ganesh was a member of the family, as per the evidence of P.W.I, It cannot at all be stated that the house was not a dwelling-house as stated by P.W. 1, in spite of the averment in paragraph 11 of the plaint of the Title Suit no. 41 of 1963 that the house was a joint family residence. 6. 41 of 1963 that the house was a joint family residence. 6. The contention that Sarada was not a stranger to the family cannot also he accepted Sarada may be a tenant in respect of a portion of Block A, as alleged in her petition of objection, though no evidence has been adduced in the matter. Even then, there is nothing to show that Sarada was related by blood to Janaki and her co-sharers. The word, "family", in the Act is given a liberal and comprehensive meaning for the purpose of s. 4 of the Act. It includes a group of persons related in blood, who live in one house under one head or management. It is not restricted to a body of persons who can trace their descent from a common ancestor (Kshirode Chunder Ghosal v. Saroda Prosad, 12 CLJ 505). The fact that a major portion of a house has been let out to tenants or that some of the daughters are married and are living with their husbands away from their father's house or sale of her share in a house by one married daughter does not take a case out of s 4 of the Act and the house is to be deemed to be a dwelling house belonging to an undivided family, meaning a family not divided quashed welling house (Satyendu Kundu v. Amar Nath AIR 1964 Calcutta 52) As Sarada is not related by blood to Janaki and her co-sharers and as she did not live in the dwelling house under one head or management, It cannot at all be stated that she was not a stranger to the family, even though she may be a tenant in respect of a portion of Block A of the house. As stated in the case of Haradhone v. Haldar v. Usha Charan (AIR 1955 Calcutta 292), If joint possession of a stranger purchaser has assumed such a character that he may be regarded as a member of the family referred to in s. 4 of the Act, be will place himself outside the mischief of that section and will not be bound to submit to pre-emption thereunder. There is, however, no evidence on the side of the opposite party to show or suggest that Sarada could be regarded as a member of the family for being a tenant in respect of a portion of the Block A of the house. 7. For attracting s 4 of the Act, the house must be a dwelling house, it must belong to an undivided family, a share of such a dwelling he use is to be transferred to a person who is a stranger to the family and the stranger transferee is to sue for partition of the house. We have already shown that the house is a dwelling-house, though there may be various tenants, various businesses and a school for girls in the house Mr. Verma has contended that it was no-longer an undivided family after allotment of Block A to Janaki on 10.11.76 without any objection by the other co-sharers by the order of the court and thereafter passing of the final decree allotting Block A to Janaki, Block B to Sumaria and Block C to Munni Devi Mr. Verma has also drawn out attention to the difference in the meaning of the word, "partition" in the Mitakshara School of Hindu Law and Dayabhaga School of Hindu Law. According to him, there was a severance of joint status on the allotment of Block A to Janaki on 10.11.76 and the family was thereafter to longer an undivided family to attract s 4 of the Act. This contention cannot also be accepted. It is no doubt true that as compared with the Dayabhaga School of Hindu Law, under which partition consists in the division of joint property by metes and bounds and not in specifying the shares only, partition, under the Mitakshara School of Hindu Law, means severance of joint status as well as de facto division of the properly. Once there is an intention to partition a property by specification of shares without a division by metes and bounds, there is severance of status for all purposes under the Mitakshara School of Hindu Law, even though there may be no de facto division of properly, i.e. allotment of shares which may be effected by different methods, such as by private agreement, or by arbitrators appointed by parties or even by court. Even then, for the purpose of attracting s 4 of the Act, the expression "undivided family" does not mean only severance of status A Hindu joint family divided in status will still be an undivided family qua dwelling house, if there has been no division of the dwelling-house by metes and bounds for the purpose of the Act (Ramaswami v. Subramania AIR 1967 Madras 156) "Undivided family" means a family which has not divided the dwelling-house by metes and bounds, though the members of the family may have partitioned all their other joint properties and may separate in mess and worship. The expression "undivided family", does not mean Hindu Joint family or even joint family. The members need not be joint in mess Ramaswami v. Subramania AIR 1967 Madras 156; Boto Krishna v. Akhoy Kumar AIR 1950 Calcutta 111; Santosh Kumar Mitra v. Kali Pada Das AIR 1981 Calcutta 278). As the expression "undivided family" means a family, though divided in status but undivided qua the dwelling house sought to be divided, the contention of Mr. Verma that there was division of status on allotment of Block A to Janaki on 10.11.76 cannot stand in the way of invoking s. 4 of the Act, if otherwise the other conditions of that section are fulfilled. In the suit for partition brought by Janaki there were five properties, the dwelling house being mentioned in item no. 2 in the schedule to the plaint of the Title Suit no. 41 of 1963. As regards the dwelling house, the family is to be taken as still undivided though there may be partition of the other properties mentioned in the schedule to the plaint of that suit on the basis of division of status amongst the members of the Mitakshara family. The contention that the family is no longer an undivided family after the allotment of Block A to Janaki on 10.11.76 cannot thus be accepted. 8. As regards the pleas of non-joinder find mis-joinder of parties, it is to be stated that Janaki brought the Title Suit no. The contention that the family is no longer an undivided family after the allotment of Block A to Janaki on 10.11.76 cannot thus be accepted. 8. As regards the pleas of non-joinder find mis-joinder of parties, it is to be stated that Janaki brought the Title Suit no. 41 of 1963 against Lakshman Halwai, his wife, Sm Munni Devi, Ram Jatan Halwai, his wife Sm Sumaria Devi and Dilip Kumar Halwai, son of Lakshman The petition under s 4 of the Act was filed by Munni Devi against the opposite party, Sarada, Ganesh Prosad Gupta (who got l/3rd share in the dwelling house from Janaki on 3.12.79 by virtue of a deed of settlement and trust). Sumaria Devi, Rajkumari Halwai, as well as five heirs and legal representatives of Lakshman viz. Dilip, Rajendra, Champa, Sabitri and Chanda. These five heirs and legal representatives of Lakshman were substituted on the death of Munni Devi during the pendency of the petition under s 4 of the Act by an order of the court below on 5.5.84. In the memo of appeal as well as in the revisional application, in the alternative preferred against the impugned order of the Court below, rejecting the petition under s 4 of the Act, only Sarada Verma has been made respondent or opposite party. The non-joinder of Ganesh Prosad Gupta, Sumaria Devi and Rajkumari in the memo of appeal or the revisional application as well as mis-joinder of the five legal representatives or Lakshman also as pro-forma opposite parties. In the petition under s. 4 of the Act have led to the contention of Mr. Verma that the revisional application is to be rejected. We are unable to accept this contention. As already stated Ganesh Prosad Gupta had, according to the opposite party got Block A in the house from Janaki by the deed of settlement and trust dated 3.12.79. It appears from the evidence of P.W. 1 that Sumaria sold her undivided share to PW 1 and Dilip Gupta on 5.10.85 (the year of sale being palpably erroneous as P.W. 1 gave evidence on 12.5.84). The petitioners have filed an affidavit on 30.10.87 showing the sale of 1/3rd share in the dwelling house by Sumaria and Rajkumari on 5.10.83 to Dilip Gupta and Rajendra Gupta (PW 1). The petitioners have filed an affidavit on 30.10.87 showing the sale of 1/3rd share in the dwelling house by Sumaria and Rajkumari on 5.10.83 to Dilip Gupta and Rajendra Gupta (PW 1). At the time of filing of the memorandum of appeal of the revisional application Sumaria Devi and Rajkumari had no longer any subsisting interest in the dwelling house after the sale of Dilip and Rajendra Ganesh had also no subsisting interest after the sale to the opposite party. In the circumstances the non-joinder of Ganesh or Sumaria or Rajkumari in the memorandum of appeal or the revisional application is of no consequence in view of the provision in Order 1 Rule 9 C.P.C. and the revisional application cannot fail because of non-joinder of these persons. As regards the five heirs and legal representatives of Lakshman, who are the petitioners as well as the pro-forma opposite party no. 3(1) to 3(5) in the petition under s. 4 of the Act, it is to be stated that these five heirs were substituted on the death of Munni Devi during the pendency of the petition under s. 4 of the Act in the court below and their named ought not to have appeared also as pro-forma opposite parties thereafter in the petition under s. 4 of the Act, as they were transposed as the petitioner on the death of Munni Devi in the court below. Though there was no prayer for omitting the names of these pro-forma opposite parties nos. 3(1) to 3(5) in the petition under s. 4 of the Act in the court below, the mention of their names once as petitioners and thereafter as pro-forma opposite parties cannot affect the maintainable of the petition under s. 4 of the Act. We are accordingly, unable to accept the contention of Mr. Verma that the revisional application is to be rejected for non-joinder and mis-joinder of parties. 9. The learned Subordinate Judge was of the opinion that the petition under s. 4 of the Act was not maintainable on the basis of a decision of this court in the case of B.N. Banerji v. Snehalata Devi (72 CWN 128). He referred to another case of S.N. Sadhukhan v. Chhotelal Shaw (74 CWN 871) and distinguished that case from the present case as the opposite party purchased Block A after the final decree. Mr. He referred to another case of S.N. Sadhukhan v. Chhotelal Shaw (74 CWN 871) and distinguished that case from the present case as the opposite party purchased Block A after the final decree. Mr. Verma has contended the principle laid down in the case reported in 72 CWN 128 should be followed as there was no reference to this Division Bench decision in the latter case of S.N. Sadhukhan (supra). Mr. Dasgupta has contended that on the basis of the principles laid down in the case of S.N. Sadhukhan (74 CWN 871), the application under s. 4 of the Act should be held to be maintainable. As already stated four conditions are necessary for applying s. 4 of the Act. Three of these conditions have been satisfied by the petitioners as the house is a dwelling-house, it belongs to an undivided family, and Block A of the house has been transferred to the opposite party. We have already shown that the severance of status on the allotment of Block A to Janaki on 10.11.76 will have no effect so far as operation of s 4 of the Act is concerned. The only other condition remaining to be considered for attracting s 4 of the Act is thus whether the transferee, Sarada, has sued for partition of the dwelling house. In the case of B.N. Banerji (72 CWN 128), it has been held that an application for pre emption under s 4 of the Act can be made at any stage of the suit and that the right or pre-emption given by the statute 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 S.N. Sadhukhan (74 CWN 871), it has been held that application under s 4 of the Act is maintainable, even after the final decree in the suit was passed and drawn up and before possession of the allotted property was delivered to the stranger in the execution by him of the decree. In the case of S.N. Sadhukhan (74 CWN 871), it has been held that application under s 4 of the Act is maintainable, even after the final decree in the suit was passed and drawn up and before possession of the allotted property was delivered to the stranger in the execution by him of the decree. This view was taken by the Division Bench in the case of S.N. Sadhukhan (supra) on holding that an application for execution of a decree was an application in the suit in which the decree was obtained and that the suit must be taken to be pending till the decree passed therein was satisfied Mr. Verma has contended that the decision in the case of S.N. Sadhukhan (supra) was given per incuriam and is not of any value as precedent in view of the earlier decision of another Division Bench in the case of S. N. Banerji (72 CWN 128) One co ordinate Bench of the same High Court cannot take a view contrary to the decision given earlier by another Bench of that court (See Sitaram v. Laxman AIR 1980 Bombay 55 ; Ramarao v. Shantibai, AIR 1977 Madhya Pradesh 222; Shra Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Co v. State of Madhya Pradesh, AIR 1972 SC 51 and Eknath v. State of Maharashtra ( AIR 1977 SC 1177 ). As such, Mr. Verma has contended that the principle laid down in the case of S.N. Sadhukhan should not be followed and that if the court so desired, the matter should be referred to a larger Bench. To support his contention, Mr. Verma has referred us to a Division Belch decision of this court in the case of Kali Kumar Mukherji v. Brahmananda Mukherjee (7 CLJ 98), another Division Bench decision of this court in the case of Surendra Nath Achar v. Ram Chandra Hazra (75 CWN 195) and a single bench decision of the Madras High Court in the case of Abdul Sathar v. A Nawab (AIR 1980 Madras 235). It appears that the Division Bench decision of this court in the case of Kali Kumar Mukherjee (7 CLJ 98) was discussed in the case of S.N. Sadhukhan (supra) as well as in the case reported in AIR 1980 Madras 235, though it was not referred to in the case reported in 72 CWN 128. It appears that the Division Bench decision of this court in the case of Kali Kumar Mukherjee (7 CLJ 98) was discussed in the case of S.N. Sadhukhan (supra) as well as in the case reported in AIR 1980 Madras 235, though it was not referred to in the case reported in 72 CWN 128. In the case of Surendra Nath Abchar (75 CWN 195), it was held that the proper stage for making application under s. 4 of the Act would be when application for final decree of partition by appointing a commissioner to effect the partition by metes and bounds had been made. In the case reported in AIR 1980 Madras 235, a stranger to an undivided family filed a suit for partition on acquiring 66/80 share in respect of a house of which the petitioner under s 4 of the Act, his mother, his two brothers and four sisters wert the owners. The stranger purchased the shares of all these persons except that of the petitioner under s 4 of the Act. A preliminary decree for partition was passed in that suit on the basis of joint accord and the question of pest and future mesne profits was relegated to the final decree proceeding. Accordingly, a preliminary decree was passed, declaring 55/80 shares of the auction-purchaser and it was directed that possession of the same was to be delivered to the stranger- purchaser subsequently, a commissioner was appointed in that suit and in accordance with his report, a final decree was drawn up on 23.12.69. Thereafter, after about 8 years, on 22.11.77, there was the petition under s 4 of the Act. It was held in that case that the petition under s 4 of the Act was not maintainable for being filed after the passing of the final decree as the court became functus officio after the passing of the final decree and could not re-write the final decree. It was also held in the case that s. 4 of the Act could be invoked at the appellate stage from final stage from final decree in some cases but not after the passing of the final decree. On the basis of these Division Bench decisions in 72 CWN 128, 75 CWN 195 and 7 CLJ 98 and the Single Bench decision in the case reported in AIR 1980 Madras 235, Mr. On the basis of these Division Bench decisions in 72 CWN 128, 75 CWN 195 and 7 CLJ 98 and the Single Bench decision in the case reported in AIR 1980 Madras 235, Mr. Verma has contended that the petition under s 4 of the Act filed in this case on 2.8.83 after about 4 years after the passing of the final decree on 24.4.79, is not maintainable. We have carefully considered the rival contentious of the parties and we are of the opinion that in the facts and circumstances of this case, there is no need of referring the decision in 74 CWN 871 to a larger Bench. The provisions of s 4 of the Act are to be construed liberally. Section 4 of the Act aims at preservation of homogeneity amongst the members of a family with respect of their dwelling house. Section 4 of the Act is in the nature of a supplement to the second part of s 44 of the Transfer of Property Act (Boto Krishna v. Akhoy Kumar, AIR 1950 Calcutta 111). Under the Second Part to s 44 of the Transfer of Property Act, a stranger purchaser of a share of a dwelling house belonging to an undivided family is not entitled to joint possession or other common or part enjoyment of the house. What is to happen to such a stranger-purchaser is mentioned in s. 4 of the Act under which an option of pre emption have been given to any member of the family who is a shareholder. A stranger-purchaser may purchase a share of a dwelling house at different points of time. He may purchase a share in a dwelling house belonging to an undivided family during the pendency of a suit for partition brought by one or several co-shares against the other co-sharers and before the passing of a preliminary decree in the suit. He may make the purchase after the passing of the preliminary decree but during the pendency of the suit before the passing of the final decree. He may purchase after the passing of the final decree but during the appellate stage from the final decree. He may purchaser after the appellate stage from the final decree and in course of the execution proceeding for delivery of possession by metes and bounds, in accordance with the final decree. He may purchase after the passing of the final decree but during the appellate stage from the final decree. He may purchaser after the appellate stage from the final decree and in course of the execution proceeding for delivery of possession by metes and bounds, in accordance with the final decree. Though in the Division Bench decision in the case reported in 75 CWN 195 it was held that the proper stage for making an application under s 4 of Act would be when application for final decree of partition by appointing a commissioner to effect partition by metes and bounds was made, a member of family, being a shares holder of a dwelling-house belonging to an undivided family, cannot be without remedy if an application under s. 4 of the Act is made after the passing of the final decree and during the pendency of an appeal from the final decree. It is to be stated, in this connection, that in the case of Surendra (75 CWN 195), the appeal was from a preliminary decree directing that the defendants would be entitled to pre-empt under s. 4 of the Act and it was directed by this court in that the direction for sale under s. 3 of the Act was to be inserted in the final decree, In other words, there can be an order for pre-emption under s. 4 of the Act even at the time of passing of the final decree. There can be an order for pre-emption at the time of appeal from a final decree as the suit remains pending till the disposal of the appeal. The case in 72 CWN 128 was not concerned with any execution proceeding. In the case reported in 74 CWN 871, the transfer was to the stranger purchaser before the final decree. The transfer was not after the passing of the final decree. In fact, in none of the cases referred to by the learned Advocates for the parties, there was any transfer to a stranger-purchaser after the passing of the final decree and in course of execution proceeding. The transfer was not after the passing of the final decree. In fact, in none of the cases referred to by the learned Advocates for the parties, there was any transfer to a stranger-purchaser after the passing of the final decree and in course of execution proceeding. When there is no decision of this court as to what is to happen to an application under s. 4 of the Act in the case of transfer to a stranger of a shares of a dwelling house belonging to an undivided family after the passing of the final decree and in course of execution proceedings for satisfying the final decree, it is not necessary for us to consider as to whether the decision of the Division Bench in 74 CWN 871 will be per incuriam, in view of the previous decision of another Division Bench of this court in 72 CWN 128. As already stated, the case of Kali Kumar Mukherjee (7 CLJ 18) was discussed in 74 CWN 871 and thereafter it was held that an application under s. 4 of the Act was maintainable even after the final decree and before delivery of possession to a stranger-purchaser in execution of the final decree. In short, as none of the cases referred to by the learned Advocate for the parties lay down any principle to be followed in case of the sale to a stranger-purchaser after passing of the final decree and in course of execution proceeding, it is not necessary for us to refer to a larger Bench this execution on the ground that the Division Bench of his court in 74 CWN 871 did not refer to the previous Division Bench decision of this court in 72 CWN 128 and was a decision per incuriam. 10. After the passing of the final decree to the Title Suit No. 41 of 1963, the plaintiff-decree-holder, Janaki, filed the execution case numbered as Title Execution Case No. 6 of 1980. We are told that after the execution of the deed of settlement and trust by her in favour of Ganesh Prosad Gupta on 3.12.79, Ganesh Prosad was substituted in place of Janaki and that thereafter, after the sale to the opposite party, Sarada, was substituted in place of Ganesh. We are told that after the execution of the deed of settlement and trust by her in favour of Ganesh Prosad Gupta on 3.12.79, Ganesh Prosad was substituted in place of Janaki and that thereafter, after the sale to the opposite party, Sarada, was substituted in place of Ganesh. The question is whether the proceeding with the execution case by Sarada after being substituted in place of Ganesh will tantamount to, "suing for partition" on the part of the opposite party. A person whose name is not on the record as party to a suit at the time the decree is passed, does not become a party in that suit by acquiring subsequent to the decree an interest in a property or by applying for execution. On the basis of this principle, Mr. Verma has contended that it cannot be held that the opposite party was suing for partition by proceeding with the execution case after being substituted in place Ganesh. It is no doubt true that the opposite party cannot be held to be a party in the Title Suit No. 41 of 1963 as she purchased on 20.12.82 after passing of the final decree in that suit. Even then, there is nothing to show that the expression, "such transferee sues for partition", In s. 4 of the Act will mean that the transferee himself will have to bring the suit for partition. Mr. Verma has referred us to a Full Bench decision of the Allahabad High Court in the case of Sakhawat Ali v. Ali Husain (AIR 1957 Allahabad 356) and bas contended that right of pre emption can be claimed only if the transferee sues for partition himself or makes the same claim when he is impleaded as a defendant in such a suit. It has been held in the case of Sakhawat Ali (supra) that s 4 of the Act does not entitle to co-sharer to buyout the stranger transferee whenever he likes, unless the transferee is claiming partition of his share either as plaintiff or as a defendant. This court has not, however, put such an interpretation on the expression, "such transferee sues for partition", In s 4 of the Act. This court has not, however, put such an interpretation on the expression, "such transferee sues for partition", In s 4 of the Act. It has been held by this court in the case of Haradhone Haldar v. Usha Charan (AIR 1955 Calcutta 292) as well as in the case of Santosh Kumar Mitra v. Kalipada Das (AIR 1981 Calcutta 278), that a party in a partition suit whether a plaintiff or defendant, is at the same time a plaintiff as well as a defendant and that it will not be inappropriate to speak of a defendant in a partition suit as, "suing for partition". The word, "to sue", has been given an extended mewing by this court in the case of Haradhone (AIR 1955 Calcutta 292). The expression, "to sue" signifies not only "to prosecute", but also "to defend" or "to do something which the law requires for better prosecution or defence of the cause". This extended meaning of the words, "to sue" in AIR 1955 Calcutta 291 has been taken from Stroud's Judicial Dictionary by John S James, Volume V, at page 2665. According to Stroud's Judicial Dictionary, the expression "to sue", generally speaking, means to bring actions. According to Black's Law Dictionary, Fifth Edition by Henry Champbell Black at page 1284, the word "sue" means "to commence or to continue legal proceedings for recovery of a right". According to Mozley and Whlteley's Law Dictionary, Ninth Edition, by John B. Saunders at page 327, the word “sue” means, "to take legal proceedings claiming a civil right against any one". In the Shorter Oxford English Dictionary by William Little, H W Fowler and J Coulson, Third Edition, Volume II at page 2070, the word, "sue" means to prosecute (au action), to pursue (a subject) : also to follow up (an achievement), to take (legal action), to institute (a legal process) and to plead (a clause) The word "sue" thus means taking of legal proceedings claiming a civil right against anyone. By being substituted as a decree-holder in place of Ganesh in the Title Execution Case No. 6 of 1980, the opposite-party is suing the judgment-debtors including Munni Devi in the execution case, claiming a civil right against the judgment-debtors for getting delivery of possession of Block A of the dwelling-house from the judgment-debtors for satisfaction of the decree obtained by Janaki against the judgment-debtors. In these circumstances it is to be held that by proceeding with the execution case on being substituted in place of Ganesh, the opposite party was suing for partition in the sense of getting delivery of possession of Block A by metes and bounds from the other co-sharers of the property, in accordance with the final decree. The case of Abdul Sathar (AIR 1980 Madras 235), referred to by Mr. Verma, proceeded on the footing that the object of the s 4 of the Act was to put an end to the title of the transferee to the share of the property purchased from the members of the family and make it available to them and that, in that context, the question of defeating the title of the purchaser by resort to s. 4 of the Act assumed importance rather than the question of possession of the property. On the basis of this principle, it was held in that case that non-obtaining of possession of the properties allotted under the final decree cannot be pressed into service to claim the benefit of an application under s 4 of the Act. With due respect, we are unable to accept this principle. The object of s 4 of the Act is not to put an end to the title of the transferee. Neither s. 4 of the Transfer Property Act nor s 4 of the Act shows that the transferee does not obtain any title on the basis of purchase, of a share of dwelling house belonging to an undivided family. What s. 44 of the Transfer of Property Act prohibits is joint possession or other common enjoyment of the property on the basis of such a purchase What s. 4(1) of the Act enjoins is right of pre emption of such a share of the dwelling house by any other member of the undivided family, being a share holder. In fact, there can be no question of sale on valuation of share purchased by a stranger-transferee, in case the stranger-transferee does not acquire any title on the basis of his purchase. In fact, there can be no question of sale on valuation of share purchased by a stranger-transferee, in case the stranger-transferee does not acquire any title on the basis of his purchase. In other words, the object of s. 4 of the Act is not to put an end to the title of the transferee but to put a bar on his joint possession or other common enjoyment, unless he sues for partition, giving thereby a right to any other member of the undivided family, who is a co-sharer, to pre-empt the share; purchased by him. In that context the question of delivery of possession of the property allotted under the final decree is very much important, so far as the transferee purchaser after the final decree is concerned. Moreover, if a transferee-purchasing during the pendency of that suit for partition before the passing of a preliminary declare in that suit or during the pendency of that suit before passing of the final decree or even during the appellate stage from final decree in that suit for partition is subject to the right of pre-emption under s. 4 of the Act, there is no reason why s 4 of the Act should not be attracted because the stranger-purchaser makes the purchase after the passing of the final decree and in course of the execution proceeding for delivery of possession by metes and bounds in accordance with the final decree. As decided by this court in the case of Bhuban Mohan v. Brojendra (45 CWN 74), the right conferred by s 4 of the Act is not lost merely by reason of the fact that the purchaser has obtained possession but only if the possession has been such that the purchaser may be regarded as having become a member of the family. We have already shown that the possession of a portion of Block A by the opposite-party is not as a member of the family. As such the petitioners arc entitled to pray for pre-emption under s. 4 of the Act when the opposite-party "suing for partition" within the meaning of s 4 of the Act fur getting delivery of possession in the execution case in respect of Block A. Mr. As such the petitioners arc entitled to pray for pre-emption under s. 4 of the Act when the opposite-party "suing for partition" within the meaning of s 4 of the Act fur getting delivery of possession in the execution case in respect of Block A. Mr. Verma has contended that if the opposite party had chosen not to proceed with the execution case on being substituted in place of Ganesh Gupta, the petitioners would have been without any remedy under s 4 of the Act and hence, they cannot claim the right of preemption during the pendency of the execution Case, as the sale to the opposite-party took place after the passing of the final decree. This contention cannot be accepted. If the opposite party chose not to proceed with the execution case after purchasing from Ganesh Prosad Gupta, the execution case would have been dismissed for non-prosecution though she might have got possession of Block A, including the portion in respect of which she is a tenant in Block A. In that event the petitioners would have been entitled to file a suit for permanent injunction for restraining the opposite-party from possessing any portion in addition to the tenanted portion in Block A and such a suit would have been maintainable on the basis of the second part of s 44 of the Transfer of Property Act. In this context, the delivery of possession of Block A in the execution case to the opposite-party assumes importance, though the opposite-party may have got possession of the remaining portion of Block A, not let-out to her as a tenant, after the purchase from Ganesh. In this context, the delivery of possession of Block A in the execution case to the opposite-party assumes importance, though the opposite-party may have got possession of the remaining portion of Block A, not let-out to her as a tenant, after the purchase from Ganesh. In short, though the Division Bench decision of this court in the case of B.N Banerji (72 CWN 728) has been followed in the case or Abdul Sathar (AIR 1980 Madras 235), in preference to the Division Bench decision of this court in the case of S.N. Sadhukhan (74 CWN 871) and though a Division Bench of the Patna High Court has approved the Division Bench decision of this court in the case of S.N. Sadhukhan (74 CWN 871) in the case of H.N. Mookherjee v. Shyam Sunder Kuer (AIR 1973 Patna 142), the decision in none of these cases is very much relevant for the purpose of this revisional application, when the transfer in the present case in favour of the opposite-party took place after the passing of the final decree and not before the passing of the final decree. We have already shown that in spite of the decision to the contrary of the Full Bench of the Allahabad High Court in the case of Sakhawat Ali (AIR 1957 Allahabad 356), the opposite party, on being substituted as the decree holder in the Title Execution Case No. 6 of 1980, is suing for partition within the meaning of s. 4 of the Act, though she is not a party in the Title Suit No. 41 of 1963. In these circumstances, the petition under s 4 of the Act is maintainable. 11. The revisional application is to be allowed as the learned Subordinate Judge failed to exercise the jurisdiction vested in him by law of allowing the petitioners to pre-empt the 1/3rd share of the opposite-party in the dwelling-house on purchase from Ganesh, who was a member of the family, even as per the evidence of PW 1. We have already shown that the distinction sought to be made by Mr. Verma about the purchase of Block A and not 1/3rd share in the dwelling house makes no difference as to the right of the petitioners to pre-empt. We have already shown that the distinction sought to be made by Mr. Verma about the purchase of Block A and not 1/3rd share in the dwelling house makes no difference as to the right of the petitioners to pre-empt. It is to be stated in this connection, that the word, "share", means portion (of something) which is allotted or belongs to an individual when distribution is made among a number (see The Shorter Oxford English Dictionary by William Little, H W Fowler and J Coulson, Third Edition, Volume II at page 1865). Even though Block A may have been transferred to the Opposite-party by Ganesh on 10.12.82, it will nevertheless be a share in the dwelling house (even though Block A may have been allotted to Janaki without any objection by the other co sharers on 10.11.76), till delivery of possession of Block A to the decree holder by metes and bounds in the execution case. 12. The revisional application is, accordingly, allowed. The memorandum of appeal is rejected. The impugned order dated 23.5.84 passed by the learned Subordinate Judge, Fifth Court, Alipore, in Misc Case No. 36 of 1983 under s. 4 of the Partition Act, 1893 is set aside. The learned Subordinate Judge, Fifth Court, Alipore is directed to proceed with the petition under s. 4 of the Partition Act, 1893 filed in the Title Suit No. 41 of 1963 of his court on merits in accordance with law. No decree need be drawn up. Let the lower court records be sent down as early as possible. In the special circumstances of this case, parties to bear their own costs of this proceeding. L.M. Ghosh, J : I agree. Impugned order set aside; direction given.