M. S. SHAH, J. ( 1 ) THIS application is filed by the appellant of First Appeal No. 3317 of 1996 and original defendant No. 1 of Special Civil Suit No. 38/88 for review of the judgment and order dated 15. 10. 1997 passed by this Court (Coram : Mr Justice S. D. Shah) in the above numbered First Appeal. Since Mr Justice S. D. Shah has expired, this application is placed before this bench. In this application filed on 5. 10. 1998, a prayer is also made for condoning the delay in filing the application. ( 2 ) THE short facts leading to filing of this application are as under :-PURIBEN Ratnabhai Satwara, daugther of deceased Mor Rama filed the above numbered suit in the year 1988 before the Court of the learned Civil Judge, Rajkot for partition of the suit properties and for giving the plaintiff 1/5th share in the suit properties. The defendants were served. Defendant No. 1 i. e. the applicant herein filed his written statement Exh. 38. The other defendants except defendant No. 9 filed their written statements at Exhs. 14 and 9. Defendant No. 9 did not file any written statement. The defence of defendant No. 1 i. e. present appellant was that although the properties of deceased Mor Rama were ancestral properties, the properties were partitioned amongst the sons of Mor Rama in his life time before his death in 1975. It was also denied that the plaintiff had 1/5th share in the suit properties. The evidence was led on behalf of the parties. After considering the pleadings, evidence and arguments of the parties, the learned Civil Judge (S. D), Morbi held that the plaintiff had 1/15 share in the suit properties and that since the suit properties were agricultural lands, partition by metes and bounds was required to be made as per the report of the Collector, Rajkot and therefore, for effecting the partition by metes and bounds and for handing over possession of 1/15th share in the suit properties, the Commissioner patrak be sent to the Collector under Order 20, Rule 18 of the CPC. Steps were taken for executing the said judgment and decree dated 6. 5. 1985. Pursuant to the said preliminary decree, the District Collector appointed the Circle Officer for demarcating the lands. The Circle Officer issued notices to the concerned parties on 14. 3. Steps were taken for executing the said judgment and decree dated 6. 5. 1985. Pursuant to the said preliminary decree, the District Collector appointed the Circle Officer for demarcating the lands. The Circle Officer issued notices to the concerned parties on 14. 3. 1996 and again on 31. 7. 1996. The actual partition was effected and the possession was handed over to the plaintiff and defendant Nos. 2 to 8 on 17. 8. 1996. On 23. 8. 1996 the possession was also acknowledged by the plaintiff. The plaintiff and defendant Nos. 2 to 8 got their land together to Act. The present application filed the above numbered Act. The present applicant filed the above numbered First Appeal before this Court on 18. 9. 1996 with an application for condoning the delay of 346 days in filing the appeal. In response to the notice issued by this Court on the said delay condonation application, affidavit in reply dated 4. 12. 1996 was filed by the Power of Attorney Holder of the original plaintiff and the facts stated hereinabove were pleaded for opposing condonation of delay of 346 days. It is stated in the said affidavit that both the notices issued by the Circle Officer dated 14. 3. 1996 and 31. 7. 1996 were served on the present applicant but they were refused by the applicant and so the second notice was affixed at the residential address of the applicant and sent by registered post A. D. and further that actual partition had taken place and possession of the share in the suit lands was handed over to the original plaintiff on 17. 8. 1996 and it was also acknowledged on 23. 8. 1996. When the said application for condonation of delay came up for hearing before this Court (Coram : Mr Justice M. S. Parikh) on 9. 9. 1997, after hearing the parties this Court passed order dated 9. 9. 8. 1996 and it was also acknowledged on 23. 8. 1996. When the said application for condonation of delay came up for hearing before this Court (Coram : Mr Justice M. S. Parikh) on 9. 9. 1997, after hearing the parties this Court passed order dated 9. 9. 1997 recording detailed objections raised on behalf of the plaintiff and particularly the facts about actual partition having taken place after notices sent to the present applicant Kesha Mor who refused to accept the said notices and the notices having been affixed at the residential address and also having been sent by registered post A. D. After specifically recording the averments made in the reply affidavit made on behalf of the plaintiff, this Court referred to the affidavit in rejoinder filed the present applicant and observed as under :-"on going through the affidavit in rejoinder, I find that these facts have not been dealt with by the applicant. Hence for answering the said facts the learned Advocate for the applicant seeks time. S. O. to 30. 9. 1997. "when the Civil Application again came up for hearing before this Court (Coram : Mr Justice S. D. Shah) on 15. 10. 1997, this Court granted Civil Application No. 7995 of 1996 by observing that from the averments made in the application and having heard the learned counsel for the application and respondent No. 1-original plaintiff, the Court was of the view that sufficient cause was shown for condoning the delay for which a liberal approach was required to be adopted. On the same day, this Court (Coram : Mr Justice S. D. Shah) took up the First Appeal for hearing and held that since the partition had already taken place and the decree was executed nothing survived in the appeal and, therefore, the appeal was summarily rejected. The fact that the decree was executed was not denied by the learned counsel appearing for the appellant-Kesha Mor Satwara who is also the applicant herein. ( 3 ) THE present application is filed on the ground that this Court had proceeded on an erroneous or non-existent basis that the final decree was already drawn and was already executed and, therefore, the appeal was not entertained. The applicant has contended that what was drawn was only a preliminary decree and no final decree was drawn when this Court dismissed the appeal on 15. 10. The applicant has contended that what was drawn was only a preliminary decree and no final decree was drawn when this Court dismissed the appeal on 15. 10. 1997 and, therefore, the ground was made out for review of the order dated 15. 10. 1997 as the Court had then relied upon the statement made by the learned counsel for the original plaintiff. ( 4 ) IN response to the notice issued by this Court, affidavit in reply dated 29. 3. 1999 is filed by Jayantibhai Ratnabhai, son of deceased plaintiff opposing the application for review and also contending that no ground is made out for condoning delay of about one year in filing the review application. On merits, it is stated that the preliminary decree was drawn by the trial Court on 6. 5. 1995 and pursuant thereto the possession of the land in question was handed over by the Circle Inspector and Talati-cum-Mantri on 17. 8. 1996 to the original plaintiff-Puriben Ratnabhai and defendant Nos. 2 to 8 and that the above proceedings were undertaken by the Revenue Department after a notice to applicant Kesha Mor and that the necessary entries were also made in the revenue record. IT is further stated in the aforesaid affidavit that the applicant had suppressed material facts by not stating that the applicant had moved an application Exh. 122 before the trial Court for restoring the possession of the land to the applicant from the present respondents (i. e. plaintiff and defendant Nos. 2 to 8) which was given to them as per the preliminary decree drawn by the Court. The said application was rejected by the trial Court on 5. 9. 1998 and that the said order was suppressed by the applicant and, therefore, the present application is not maintainable. ( 5 ) AT the hearing of this application, Mr Suresh M Shah, learned counsel for the applicant has urged the following contentions :- (I) Before the date on which the appeal was preferred by the present applicant i. e. September, 1996, the Bombay Civil Courts Act was amended and, therefore, the jurisdiction to hear the appeal was with the District Court and not with this Court. (ii) The order passed by this Court in First Appeal on 15. 10. 1997 was in favour of a dead party as original respondent No. 1 Puriben Ratnabhai Satwara had already expired on 27. (ii) The order passed by this Court in First Appeal on 15. 10. 1997 was in favour of a dead party as original respondent No. 1 Puriben Ratnabhai Satwara had already expired on 27. 1. 1997 without her heirs having been brought on record. Therefore, the decree passed in First Appeal was in favour of a dead party and, therefore, a nullity as per the decision of this Court in 18 GLR 504. (iii) Even if the preliminary decree dated 6. 5. 1995 was executed and even actual possession had taken place by defendant Nos. 2 to 8 and the possession was handed over by the plaintiff, the appeal was required to be decided on merits and the order of this Court dismissing the appeal on this ground alone suffered from an error apparent on the face of the record. (iv) The First Appeal was filed against the decree dated 6. 5. 1996 which was only a preliminary decree and not a final decree. Hence, the appeal was maintainable as per the decision of this Court in 1991 (2) GLH 522. The final decree was passed only on 22. 9. 1998 vide Exh. 143 and, therefore, the appeal was wrongly dismissed on 15. 10. 1997 as if the appeal was against a final decree. (v) As far as the delay is concerned, since the decree dated 15. 10. 1997 was a nullity, the bar of delay cannot be held out against the applicant and that in any view of the matter, in para 3 of the application the applicant had shown sufficient cause for condoning the delay. ( 6 ) IN reply Mr Kavina for M/s Thakkar Associates appearing for respondent No. 1 opposed the application on the ground of delay and also on merits. ( 7 ) HAVING heard the learned counsel for the parties, this Court is of the view that the application deserves to be dismissed. In the first place, the revision application is filed after a delay of about more than 300 days. The oral judgment was delivered by this Court on 15. 10. 1997. The only ground urged in the application is in the following terms :- "that the advocate of the petitioner did not inform about the aforesaid order dated 15. 10. 1997 of the Honble Court summarily dismissing the appeal and the petitioner, therefore, did not come to know about it soon. 10. 1997. The only ground urged in the application is in the following terms :- "that the advocate of the petitioner did not inform about the aforesaid order dated 15. 10. 1997 of the Honble Court summarily dismissing the appeal and the petitioner, therefore, did not come to know about it soon. " after dismissal of the First Appeal, the matter had further proceeded before the trial Court and the final decree was also drawn on 22. 9. 1998. When the land was physically partitioned as far back as in August, 1996, the petitioner-appellant would certainly be expected to inquire from his advocate as to what had happened in the First Appeal. The averments that the petitioner did not come to know about the order of this Court `soon is also delightfully vague. The petitioner has, therefore, not shown sufficient cause for condonation of delay. ( 8 ) AS regards the contention that the decree was a nullity because the original plaintiff Puriben Ratnabhai Satwara had expired, it is pertinent to note that original plaintiff Puriben Ratnabhai Satwana was sister of the petitioner-appellant and, therefore, the petitioner very much knew that Puriben had expired. In fact, affidavit in reply dated 4. 12. 1996 for opposing the delay condonation application was already filed on behalf of Puriben when she was alive. 8. 1 while the general rule is that a decree passed against a dead person is nullity what is required to be noted is that the decree is nullity if it is passed against a dead person and if it is passed without giving the concerned litigant or the heirs of such dead person an opportunity to plead their case. The provisions of Order 22, Rule 6 also support this view. In the instant case, the decree passed by this Court on 15. 10. 1997 was not against the deceased-original plaintiff, but in favour of the deceased respondent No. 1 (original plaintiff) and other respondents. Moreover, the heirs of original plaintiff-Puriben do not make any grievance against the said decree dated 15. 10. 1997. 8. In the instant case, the decree passed by this Court on 15. 10. 1997 was not against the deceased-original plaintiff, but in favour of the deceased respondent No. 1 (original plaintiff) and other respondents. Moreover, the heirs of original plaintiff-Puriben do not make any grievance against the said decree dated 15. 10. 1997. 8. 2 reliance placed by Mr Shah on the decision of this Court in Jadavji Devshankar vs. Jiviben, (1977) 18 GLR 504 is misconceived because in that case the Court was not concerned with a partition suit, but it was an eviction suit filed under the provisions of the Rent Act, where the landlord-sole appellant expired during pendency of the appeal and the appeal was allowed. This Court, therefore, relied on the decision of the Bombay High Court in Amarsingji vs. Desai Umed, AIR 1925 Bombay 290 and held that upon death of the sole appellant, there was no appeal whatsoever before the Court and, therefore, the decree passed in favour of the sole appellant was passed in a non-existent appeal and consequently a nullity. This Court in terms distinguished the judgments of the Patna and Calcullta High Courts in AIR 1937 Patna 321, AIR 1958 Patna 261, AIR 1929 Calcutta 527 and AIR 1954 Calcutta 205 on the ground that in those cases there were more than one parties, out of whom one died and, therefore, the appeals had continued even after death of one of the parties and the Courts concerned proceeded with the appeals. 8. 2 in the instant case, when respondent No. 1 died, there were eight other respondents on record. The appeal was against preliminary decree in a partition suit. When the partition suit was decreed, all the parties were alive. Before the original plaintiff died, the preliminary decree was also executed by actual partition of the suit properties by metes and bounds and handing over of possession of their respective shares to the plaintiff and to defendant Nos. 2 to 8. It was only thereafter that Kesha Mor (original defendant No. 1) preferred the First Appeal and this Court dismissed the said appeal on the ground that the decree was already executed before filing of the First Appeal. 2 to 8. It was only thereafter that Kesha Mor (original defendant No. 1) preferred the First Appeal and this Court dismissed the said appeal on the ground that the decree was already executed before filing of the First Appeal. Since the decree passed in the partition suit can be executed by or against all the parties to the suit, and was in favour of all the parties except defendant No. 1 (present petitioner), the decree passed by this Court in the appeal filed by the present petitioner-original defendant No. 1 was not a nullity merely because one of the respondents dided during pendency of the appeal. In this view of the matter, the contention urged by the learned counsel for the petitioner that the decree passed pursuant to the judgment dated 15. 10. 1997 was a nullity cannot be accepted. ( 9 ) AS regards the contention urged by the petitioner that the appeal itself was not maintainable before this Court, the contention must be rejected as the petitioner cannot be permitted to approbate and reprobate after the petitioner himself having filed the appeal before this Court in September, 1996 and having invited the judgement of this Court, after the judgment went against him, the petitioner cannot be permitted to turn round and contend that the appeal was not maintainable. ( 10 ) ON merits also, no ground is made out for reviewing the order passed by this Court (Coram : Mr Justice S. D. Shah ). It is true that on 15. 10. 1997, the final decree was not drawn. In the affidavit which was filed on behalf of the original plaintiff in Civil Application No. 7995 of 1996 for condonation of delay it was clearly stated that as per the judgment and decree dated 6. 5. 1995 the suit properties were partitioned and after giving notices to all the concerned parties in March, 1996 and July, 1996, the actual partition took place on 17. 8. 1996. What was, therefore, emphasized before this Court was only partition by metes and bounds and handing over of physical possession of the lands to the concerned parties to the suit. 1995 the suit properties were partitioned and after giving notices to all the concerned parties in March, 1996 and July, 1996, the actual partition took place on 17. 8. 1996. What was, therefore, emphasized before this Court was only partition by metes and bounds and handing over of physical possession of the lands to the concerned parties to the suit. Hence, what weighed with the Court was not whether the decree was a preliminary decree or a final decree, but the fact that the actual partition had taken place by metes and bounds and physical possession was handed over to the original plaintiff and other concerned parties to the suit. There can be no dispute with the proposition that an appeal is maintainable against a preliminary decree, but the fact that the preliminary decree was already executed and that partition by metes and bounds had taken place and physical possession was already handed over was what weighed with the Court. In any case in this review application, this Court is not supposed to rehear the appeal or to sit in appeal over the judgment dated 15. 10. 1997. ( 11 ) IN view of the above discussion, this review application is dismissed on the ground that no sufficient cause is shown for condoning the delay of more than 300 days in filing this application. Even otherwise also the application deserves to be dismissed as per the above discussion. ( 12 ) THE application is accordingly dismissed. Rule is discharged with no order as to costs. .