H. N. TILHARI, J. ( 1 ) THIS revision petition arises from the judgment and order dated 27-1-1994, delivered by principal munsiff, chikodi, in miscellaneous case No. 48 of 1989, rejecting the applicants application under order 20, Rule 18 of the Civil Procedure Code and under Section 54 of the Civil Procedure Code as not maintainable. Learned munsiff has taken the view that the legal heirs of the deceased defendant 3 has not been made party to this proceedings, and the decree which was affirmed by the appellate courts cannot be modified by the trial court. It also opined that the decree of the appellate court became final and it could not be open to him to modify that decree. ( 2 ) THE facts of the case in the nutshell are that the suit for partition had been filed namely suit No. 20 of 1972. It was decreed by the additional civil judge, chikodi, whereunder 1/5th share was allotted to the deceased sundarabai and similar share to others. Preliminary decree was passed by the civil judge and the matter, it has been brought to my notice, had come up to this court by way of second appeal and the decree of the trial court has been affirmed by this court. It appears that subsequently sundarabai having died sometime during the pendency of second appeal, so thereafter an application was moved by the applicants that 1/5th of the plaintiff be adjusted among the heirs and who will be entitled to that share, and that should be decided as to whom it has to go and if it has to pass on to the applicants, their share be increased, if so in the preliminary decree or by passing second preliminary decree. As mentioned earlier, the trial court rejected this application. so applicants who are the heirs of defendant 2, have come up before this court under Section 115 of Code of Civil Procedure. ( 3 ) I have heard Smt. Vasuda, an Advocate of this court holding brief for Sri g. s. visweswara for the petitioner and Sri b. s. kamate for the respondents. ( 4 ) LEARNED counsel for the applicant contended that by dismissing the applicant's application under order 20, Rule 18, civil procedure code as not maintainable, the court below has illegally refused to exercise jurisdiction vested in it. ( 4 ) LEARNED counsel for the applicant contended that by dismissing the applicant's application under order 20, Rule 18, civil procedure code as not maintainable, the court below has illegally refused to exercise jurisdiction vested in it. Learned counsel contended that one sundarabai having died, to give a final determination to the dispute and to avoid multiplicity of legal proceedings, the court had to determine the persons who will inherit or get the share, whether the applicants-revisionists or any other person claiming to be her heir and those who are held to be entitled to her share, that share has to pass on. Learned counsel contended that it may result in passing of second preliminary decree with reference to the share of deceased sundarabai and may affect certain modification in the share of all those who may be held entitled to the additional share, in the share of sundarabai, deceased and that their share of the property may be enhanced, but this share is not to be kept in abeyance, the court has to pass an order on the application and decide the dispute. Learned counsel contended that final decree proceedings are yet going on. Final decree has not been passed. So it was open to the court and it was the duty of the court to have allowed the application and decided the question, whether the applicants or any other parties are entitled to 1/5th share of sundarabai and if so, to what extent. Learned counsel for the applicants in support of her contention that it is open to the trial court at the stage of final decree proceedings to decide this question and if it could pass second preliminary decree, so far it related to the share of sundarabai, in addition to the preliminary decree determining the share of the parties who were alive including sundarabai at the time when preliminary decree was passed, relied on the decision of their lordships of the supreme court in the case of phoolckand and another v gopal lal. ( 5 ) THIS contention of the learned counsel for the applicants had been hotly contested. It has been contended that the plaintiffs, in view of the will executed by sundarabai in their favour, had been entitled to inherit the share. Learned counsel contended further that defendant-applicants or defendant 2 may not be entitled. ( 5 ) THIS contention of the learned counsel for the applicants had been hotly contested. It has been contended that the plaintiffs, in view of the will executed by sundarabai in their favour, had been entitled to inherit the share. Learned counsel contended further that defendant-applicants or defendant 2 may not be entitled. So far as this question is concerned it is always open to be raised. That the question as to who will be entitled to the share of Smt. Sundarabai and to what extent, the question may be agitated, even if the will not been held not to have been proved and if no finding has been given or if the court earlier has kept this question open. But in a partition, to effect partition finally by way of final decree proceedings and the preparation of final decree, if subsequent developments taken place during the pendency of final decree proceedings, these have to be taken note of and if necessary it is open to the court to modify the decree. ( 6 ) SO far as the principal question is concerned, after the Supreme Court decision cited by learned counsel for the applicants, the only contention that has been made is that this preliminary decree having been finally affirmed by this court as the appellate court, application for modification should have been made before the high court. I am unable to accept this contention. Final decree proceedings are going on the basis of preliminary decree proceedings. Before the trial court final decree has not been passed, only preliminary decree has become final. on subsequent developments taking place, it has to be decided to whom this 1/5th share has to pass on, or it has to be allotted. In that course of events the court, when it has to allot the share of sundarabai to somebody, is required to determine the question, who will be entitled to inherit that share, if there is a dispute between the plaintiffs and defendants on the point. The question of fact will have to be decided, if the will is relied it will have to consider and determine that whether the will had been executed by deceased sundarabai in favour of the plaintiffs or whether the defendants-applicants or legal heirs entitled to such a share of sundarabai, then that share has to be adjusted. The question of fact will have to be decided, if the will is relied it will have to consider and determine that whether the will had been executed by deceased sundarabai in favour of the plaintiffs or whether the defendants-applicants or legal heirs entitled to such a share of sundarabai, then that share has to be adjusted. So even if Section 152 may not apply and it has wrongly been referred or applied in the application, the application could not and shall not be thrown out, the court could have and ought to have exercised powers vested in it under order 20, Rule 18 read with Section 151. It will be appropriate at this stage to refer to the observations of their lordships of the Supreme Court in the case of phoolchand, supra:"we are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. if this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. 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 in 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. There is no prohibition in the Code of Civil Procedure against passing of second preliminary decree in such circumstances and we do not see why we should Rule out a second preliminary decree in such circumstances only on the ground that the code of civil procedure does not contemplate such a possibility. In any case if two views are possible - and obviously this is so because the high courts have differed on the question - we would prefer the view taken by the high courts which hold that a second preliminary decree can be passed, particularly in partition suits where parties have died after the preliminary decree and shares specified in the preliminary decree have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. Whether there can be more than one final decree does not arise in the present appeal and on that we express no opinion. We, therefore hold that in the circumstances of this case it was open to the court to draw up a fresh preliminary decree as two of the parties had died after the preliminary decree and before the final decree was passed. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. Further as there was dispute between the surviving parties as to devolution of the shares of the parties who were dead and that dispute was decided by the trial court in the present case and thereafter the preliminary decree already passed was amended, the decision amounted to a decree and was liable to appeal. We therefore, agree with the view taken by the high court that in such circumstances a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided, the decision amounts to a decree. We should however, like to make it clear that this can only be done so long as the final decree has not been passed. We therefore reject this contention of the appellant". ( 7 ) IN view of this principle of law, as laid down by their lordships of the Supreme Court, in my opinion, the trial court acted illegally in rejecting the application. If defendant 3 had died, the plaintiffs should have moved an application for impleadment of heirs of defendant 3, but on that ground application of defendant 2, could not be rejected. The order impugned as such appears to be suffering from jurisdictional error, that the court below illegally refused to exercise jurisdiction vested in it, by rejecting the application for determining that question and modifying the preliminary decree. thus considered, the revision has to be allowed. The order of the court below dated 27-1-1994 in miscellaneous No. 48 of 1989 is hereby set aside. A direction is issued to the trial court before which final decree proceedings are pending, to consider and determine the question of adjustment of share of sundarabai, amongst the heirs who are legally entitled in law and to determine those questions, as prayed in that i. a. i. e. , miscellaneous case No. 48 of 1989. costs are made easy. it is expected that the parties will co-operate with the court in expeditious disposal of the case. With the co-operation of the bar, the court will make efforts to dispose of the final decree proceedings expeditiously. --- *** --- .