P. K. RAY,J. ( 1 ) IN this revision application, the plaintiff of Title Suit No. 100 of 1996 being the petitioner has challenged the Order dated 17th November 1998 passed by learned Civil Judge (Senior Division ) Bankura in Title Suit No. 100 of 1996 whereby in terms of the application of the defendant praying stay of further proceeding of this Suit, the Court allowed the same. The application for stay of further proceeding of Title Suit No. 100 of 1996 was filed by defendant thereto on the ground that challenging the preliminary decree of the said partition suit dated 7th August, 1988, the title suit No. 7 of 1998 since has already been filed and pending before the Court of Civil judge (Junior Division), Second Court at Bankura on the ground that such preliminary decree was passed upon exercising the fraud upon the Court by way of non-disclosure of different facts and suppression of material facts. By the impugned order, learned Court below stayed the proceeding of the partition suit being Title Suit No. 100 of 1996. Originally, the suit was filed against the defendant No. 1 Shyamaprasad Mukherjee, a psychic patient upon making his two sons as proforma defendant. Court Guardian was appointed to contest the matter on behalf of Shyamaprasad Mukherjee but unfortunately this Court Guardian did not contest the case. Proforma defendants 2 and 3 who are the sons of said Shymaprasad Mukherjee also did not contest the matter, as a result, preliminary decree was passed Ex-parte on 17th August, 1998. After expiry of Shyamaprasad Mukherjee all the legal heirs including the widow, daughters and the sons were made parties by the Order dated 2nd January, 1990 of the learned Court below. The legal heirs by a petition dated 24th March, 1993 challenged the preliminary decree as passed without preferring any appeal to that effect. Such application was rejected by the learned Court below. The legal heirs by a petition dated 24th March, 1993 challenged the preliminary decree as passed without preferring any appeal to that effect. Such application was rejected by the learned Court below. The defendants that is the legal heirs of Shyamaprasad Mukherjee being aggrieved preferred a revisional application in this Court being C. O. No. 2647 / 1994 which was dismissed by the order dated 19th November, 1997 pased by Bhaskar Bhattacharya, J. upon holding that an ex-parte decree cannot be allowed to be set aside by an application as filed before the learned Court below and accordingly held that the impugned order rejecting such application was justified, since preliminary decree reached its finality. ( 2 ) IT is an admitted fact that the petitioner did not prefer any appeal though such preliminary decree was passed in the year 1998. After long lapse of 10 years in the year 1998, the present revisioners who are the defendants of the suit filed the said Title Suit No. 7 of 1998 praying for necessary declaration that the ex-parte preliminary decree dated 17th August, 1998 was not binding to them as such decree was passed exercising fraud. By the impugned order dated 17th November, 1998 learned Court below has allowed the application filed by the defendants and thereby had stayed further of this partition suit till finality of the Title Suit No. 7 of 1998. ( 3 ) LEARNED advocate of the petitioners submits that in view of exercise of fraud, preliminary decree can be challenged by a separate suit and the order of learned Court below is justified by passing the order of stay of further proceeding of the present partition suit till finality of the said suit being Title Suit No. 7 of 1998. ( 4 ) LEARNED Advocate of the Opposite party strongly contended that the impugned order is vitiated due to illegality as the learned Court below did not at all consider the aspect that second suit being Title Suit No. 7 of 1998 assailing the preliminary decree of Title Suit No. 100 of 1998 was barred by section 11 of Code of Civil Procedure on full application of doctrine of res-judicata. It is further contended that defendants though were a party to the partition suit being the defendant 2 and 3, the sons of defendant No. 1, but they did not choose to contest the matter and allowed an ex-preliminary decree to be passed. It is further contended that after demise of defendant No. 1, all legal heirs were made parties in the present partition suit but they did not challenge preliminary decree by preferring any appeal. On the other hand, they submitted an application for setting aside the preliminary decree in the Court below, which was rejected and such rejection was confirmed by this High Court exercising the revisional jurisdiction. It is contended further that second suit by the same self parties on the same self subject matter is not legally tenable in view of specific provision of law as laid down in section 11 of the Code of Civil Procedure. Reliance has been made to the judgment in the case Messers Premier Woodcrafts Pvt Ltd. , v. Messers Darbari Udyog and Ors, reported in AIR 1994 cal 141 . ( 5 ) CONSIDERING the materials, this Court finds that it is now a settled legal position in view of the amendment of the Civil Procedure Code that no separate suit can be instituted assailing the decree of any suit by the same self parties. In view of the amendment of the Civil Procedure Code, right of suit under Order 21 Rules 63 of the Old Code has been taken away. The determination of the question of the right title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21 Rule 98 which is an order and decree under Order 21 Rule 103 for the purpose of appeal to the same condition as to an appeal or otherwise as if it were a decree. Thus, it is found that the prescribed provision is a complete Code itself and there was no necessity of filling any further suit. This legal position has been settled by the apex Court and it is not at all res-integra. Reliance is placed to the judgment in the case Babulal v. Raj Kumar and Ors. , reported in 1996 (3) SCC 154 , which is a judgment following the earlier judgment of the apex Court in the case Bhanwar Lal v. Satyanarain and Anr. Reliance is placed to the judgment in the case Babulal v. Raj Kumar and Ors. , reported in 1996 (3) SCC 154 , which is a judgment following the earlier judgment of the apex Court in the case Bhanwar Lal v. Satyanarain and Anr. , reported in 1995 (1) SCC 6 . ( 6 ) BESIDE such the present revisioners since are the parties in the partition suit and they can challenge even the final decree in appeal, the pendency of a suit as filed by them being Title suit No. 7 of 1998 assailing the preliminary decree of this suit cannot be a ground for stay of present partition suit. Learned Court below did not at all consider this aspect of the matter while allowing the application of stay filed by the defendants of his suit and this is an illegality committed by the learned Court below in passing the impugned order. The learned Court below ought to have adjudicate the matter by considering the amended provision of the Civil Procedure Code vis-a-vis the question as to whether a separate suit assailing the preliminary decree of this suit was at all the legally tenable. In that view of the matter, the impugned order passed by the learned Court below being an illegal order without taking notice of legal provisions is not sustainable. Hence, the impugned order is set aside and quashed and the revision application is accordingly allowed but no order as to costs. Application allowed