JUDGMENT P.K. Deb, J. 1. The above mentioned revision petition and the first appeal have arisen out of the same order passed by 5th Sub-Judge, Samastipur, dated 5.9.1997 in Partition Suit no. 49 of 1975 whereby and whereunder the learned Sub-Judge has dismissed the suit on the preliminary ground that the suit is barred by the principles of res judicata because of the compromise decree passed earlier between the co-sharers in Partition Suit no. 227 of 1951. 2. There is a chequered history of the case. One Bhagwat Prasad Kanth was the original title holder. He had four sons, namely Jaideo Pd. Kanth, Baldeo Narayan Kanth, Parmeshwar Dayal Kanth and Ram Saran Pd. Kanth. The joint property consisted of several lands and houses spreading over different districts including that of the town of Samastipur. This present suit i.e. Partition Suit no. 49 of 1975 was filed by one of the sons of Ram Saran Kanth claiming his share over the whole of the suit property which was held jointly by the joint family. Some minor defendants were also there in the suit when all the heirs of the joint family property had been added as defendants in the suit. The suit was contested by some of the defendants and for and on behalf of the minor defendants guardian ad litem appointed by the court had also filed written statement and the suit was decreed on contest against the contesting minor defendants and ex parte against the rest. On the basis of the preliminary decree passed while the process of preparation of final decree was going on, some petitions were filed amongst whom some of the defendants i.e. 5, 8, 9 and 15 were also included filed objections against the preparation of the final decree and those objections were disposed of by the Sub-Judge, Samastipur, on 20.8.1988. The plea of res judicata was also pleaded in those objections and in para-17 of that order which have been filed as Annexures along with the supplementary affidavit it was held by the Sub-Judge that a compromise decree will not operate as res judicata and while rejecting the objections regarding preparation of final decree no stay order was passed and hence the preparation of final decree is still going on. After the ex parte decree was passed on 5.8.1983 against defendant nos. After the ex parte decree was passed on 5.8.1983 against defendant nos. 5, 8, 9 and 15 a petition had been filed under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree in the partition suit. The said petition was registered as Misc. case no. 28 of 1993 and after adjudication the said Misc. case was allowed and the ex parte decree passed in the Partition Suit was set aside only in respect of defendant nos. 5, 8, 9 and 15. The said order in the Misc. case has been challenged before this Court in Civil Revision no. 1049 of 1996 by the plaintiff of the Partition Suit i.e. the petitioner but the same has been dismissed on 15.10.1996. Thus the position remains that the decree passed in the Partition Suit remained intact in respect of other defendants and on the basis of that decree final decree is in the process of preparation while the decree has been set aside in respect of defendant nos. 5, 8, 9 and 15. 3. Issues had already been framed in the earlier suit and after the ex parte decree was set aside in respect of defendant nos. 5, 8, 9 and 15 written statement was filed and further issues were to be framed in the suit on the basis of the written statement filed by these four defendants only. Then a petition was filed to decide that the present suit is barred by the principle of res judicata on the ground that on earlier occasion there was already a partition suit between the co-sharers of the joint family in partition suit no. 227 of 1951 and the partition suit has been decided on compromise in the year 1956. 4. It was the contention of the defendant nos. 5, 8, 9 and 15 that the present suit being a partition suit of the whole of the joint family the same is definitely barred by the principles of res judicata because of the compromise decree already arrived at in the year 1956 in partition suit no. 227 of 1951. 5. 4. It was the contention of the defendant nos. 5, 8, 9 and 15 that the present suit being a partition suit of the whole of the joint family the same is definitely barred by the principles of res judicata because of the compromise decree already arrived at in the year 1956 in partition suit no. 227 of 1951. 5. Learned court below after considering the arguments placed by both the parties held that under Order 14 Rule 2 of the Code of Civil Procedure all matters require to be decided conjointly and that the question of limitation and fraud alleged are being mixed questions of law and fact would not be decided at that preliminary stage but he has held that the partition suit is barred by the principles of res judicata. 6. It appears that the learned court below has committed error of law in holding that the present partition suit is barred by the principles of res judicata. Admittedly, the plaintiff of the present suit was not a party in the earlier partition suit. According to the plaintiff, he and other sons of Ram Saran Kanth have been born before the compromise decree was arrived at in the year 1956. According to the plaintiff, he has been born in the year 1952 while that factum had been challenged by the contesting present defendant i.e. defendant nos. 5, 8, 9 and 15. According to them, the plaintiff was born after the compromise decree was passed. These are factual questions which can only be decided after evidence adduced by both the parties. Moreover, when the plaintiff was not a party then the decree passed earlier cannot be binding on him but if he was existing at the time of passing of the decree but he was not made a party then also the earlier decree cannot stand as a barrier under the principles of res judicata. But the same may come if he is born after the decree is passed but that also depends upon the circumstances of the case. But the fact remains that in the earlier suit no issues or disputed points have been decided by the court rather a decree was passed on the basis of compromise being arrived at by the co-sharers. How far that decree would be binding on the plaintiff is a matter to be decided on consideration of all attending factual circumstances. But the fact remains that in the earlier suit no issues or disputed points have been decided by the court rather a decree was passed on the basis of compromise being arrived at by the co-sharers. How far that decree would be binding on the plaintiff is a matter to be decided on consideration of all attending factual circumstances. By the stroke of a pen it cannot be said that the earlier compromise decree stands as a barrier on the principles of res judicata for proceeding for the present partition suit. 7. It is submitted on behalf of the opposite parties that at best the plaintiff who has been born after the compromise decree was passed in the earlier partition suit would be entitled for partitioning over the share which have been alloted to his father. But this cannot be considered at this stage. The same will depend on the circumstances of the case and as the evidence is being led to that point. 8. Moreover, it appears that the same court in the same suit had already decided the point of res judicata vide its order dated 20.8.1988 holding that the compromise decree cannot operate as res judicata. When that finding has not been altered by any superior court then the same court in the same suit cannot revise its own order passed earlier. In that view of the matter also, the order impugned is bad in the eye of law. Moreover, it appears that the stage has already come to decide the matters after framing of issues and Order 14 Rule 2 of the Code of Civil Procedure as already held in the impugned order requires all the issues to be decided at a time. But still then on preliminary issue if the suit can be decided as a whole there is no bar on the point of jurisdiction or limitation but already it has been held and found that the point of res judicata is also dependent on the facts and circumstances of the case. When the preliminary issue regarding limitation of jurisdiction and also on the point of res judicata can not be decided as both facts and law are involved then the impugned order is definitely bad in the eye of law. Moreover, on broad principle the present suit cannot be held to be barred on the principle of res judicata. 9. When the preliminary issue regarding limitation of jurisdiction and also on the point of res judicata can not be decided as both facts and law are involved then the impugned order is definitely bad in the eye of law. Moreover, on broad principle the present suit cannot be held to be barred on the principle of res judicata. 9. Learned court below has also not considered the anomalous position when already the suit has been decreed in respect of some of the defendants and as the final decree is in the preparation then on a preliminary objection being raised, the learned court below has further invited anomaly by holding that the suit is barred on the principle of res judicata. Thus the position remains that the suit is decreed in respect of some of the defendants and the final decree is in the preparation while in respect of some of the defendants the suit is held to be barred on the principles of res judicata. The learned court below ought not to have invited such anomalous position at the preliminary stage. 10. In the result, the revision petition is hereby allowed. The impugned order is hereby set aside and the matter is sent back to the court below to proceed according to law and decide all the matters after full trial. In view of the allowance of the civil revision petition the first appeal, as filed, has already become an infructuous one and hence the same is dismissed as being infructuous.