B. P. DAS, J. ( 1 ) THIS Civil Revision has been directed against a composite order passed by the Civiljudge (S. D.), 1st Court, Cuttack dated 16-2-2002 in Misc. Case Nos. 124 of 2000 and 138 of 2000 arising out of Execution Case No. 59 of 1995, which were heard analogously. ( 2 ) THE facts leading to this application are that the petitioner was the plaintiff In title Suit No. 11 of 1984 and filed the suit for partition claiming l/5th share In the suit property. The suit was contested and decreed declaring I/5th share of the plaintiff by a preliminary decree dated 9-10-1990. The said decree was challenged In First Appeal No. 106 of 1996, which was ultimately withdrawn as per the order of this Court dated 26-7-1997. The final decree proceeding was initiated and the decree was made final on 29-1-1996. ( 3 ) THE further fact is that during the final decree proceeding due to the death of defendant No. 4, an application for substitution was filed in the said final decree proceeding on 7-1-1994 with a prayer to substitute the legal heirs of the deceased defendant No. 4. Notices were issued to the proposed legal heirs of deceased defendant no. 4 and the service of the notice on the proposed legal heirs was held to be sufficient. Thereafter, though the final decree was proceeded and the final order was passed on 29-1-1996 no order either way on the prayer for substitution of the legal heirs of the deceased defendant No. 4 was passed. It is pertinent to mention here that defendant No. 4 did not contest the suit and l/5th share was granted in favour of defendant nos. 1 to 5 jointly as the said defendants hailed from a common ancestor, namely jagat Ballav. The order dated 23-3-1996 passed in the final decree proceeding would show that all the defendants were set ex parte, and a joint share was given, i. e. , I/ 5th share, in favour of defendants 1 to 5 as per Commissioner's report which was ordered to be made a part of final decree. ( 4 ) IN course of the execution proceeding, the present opposite parties raised objection to the maintainability of the decree under execution on the ground that the final decree under execution passed against deceased defendant No. 4 is a nullity. ( 4 ) IN course of the execution proceeding, the present opposite parties raised objection to the maintainability of the decree under execution on the ground that the final decree under execution passed against deceased defendant No. 4 is a nullity. While dealing with the said objection, the Executing Court by order dated 2-3-1996 set aside the final decree and directed to restart the final decree proceeding from the stage when substitution petition was filed, i. e. , on 7-1-1994. The present petitioner filed an application for review of the said order on 2-3-1996, but the same was rejected. Thereafter, the petitioner moved this Court in Civil revision No. 402 of 1998 and this Court by its order dated 14-2-2000 allowed the revision and called upon the Executing Court to dispose of the objection to the executability of the decree treating the same as Having been filed under Section 47 of the c. P. C. Thereafter, the Executing Court vide its order dated 16-2-2002 accepted the objection holding the decree under execution as a nullity in the eye of law, the same having been passed against defendant No. 4, who died during the pendency of the final decree proceeding and held that the execution case in question was not maintainable'. Being aggrieved by the aforesaid order, this revision petition was filed on the grounds that the Executing Court committed material irregularity and illegality in saying that prejudice was called to the legal heirs of deceased defendant No. 4 and the impugned order having been passed without considering that the provisions of substitution, i. e. , order 22, Rule 12, C. P. C. are not applicable to a final decree proceeding and the said order is contrary to the decision of this Court dated21-ll-1997 passed in O. J. C. No. 6771 of 1997 (reported in 1998 AIHC 1814 ). It is further stated that even though a photo copy of the aforesaid decision of the Court was produced before the Executing Court, the same was not taken into consideration. As it appears from the impugned order two misc. Cases were filed to drop the execution proceeding on the ground that the decree sought to be executed was a nullity. Learned counsel for the petitioner submits that the provisions of Order 22, Rule 12, C. P. C. Orissa (Amendment) for substitution are not applicable to a final decree proceeding. As it appears from the impugned order two misc. Cases were filed to drop the execution proceeding on the ground that the decree sought to be executed was a nullity. Learned counsel for the petitioner submits that the provisions of Order 22, Rule 12, C. P. C. Orissa (Amendment) for substitution are not applicable to a final decree proceeding. ( 5 ) ADMITTEDLY, defendant No. 4 died in course of final decree proceeding. According to the learned counsel, order dated 7-1-1994 indicates that the plaintiff filed an application for substitution of the legal heirs of deceased defendant No. 4, which was posted to 17-1 -1994 and by order dated 24-1-1994 notices were issued to the proposed legal representatives of defendant No. 4 fixing the date to 3-2-1994. The order-sheet dated 3-2-1994 shows that affidavit as to service of notice was filed by the plaintiff and the order dated 7-2-1994 indicates that the service against the legal representatives of deceased defendant No. 4 was held to be sufficient. According to the learned counsel for the petitioner, nothing remained to be done in the matter by the decreeholder. Appearance of the name of deceased defendant No. 4 in the final decree can be said to be an inadvertent error/clerical mistake from which it cannot be construed that the final decree was against deceased defendant No. 4. According to the learned counsel for the petitioner, the preliminary decree would show that defendant No. 4 did not contest the suit, but was given l/5th share jointly with defendants 1 to 3 and 5 (c) as defendants 1 to 5 hailed from a common ancestor namely, Jagat Ballav. Further the final decree would show that all the defendants were set ex parte and I/5th share was jointly allotted as per Commissioner's report, which formed a part of the final decree. The sum and substance of the argument of the learned counsel for the petitioner is that no prejudice was caused to deceased defendant No. 4, particularly when the legal heirs of defendant No. 4, who were parties to the execution case, did not challenge the decree passed against them. The sum and substance of the argument of the learned counsel for the petitioner is that no prejudice was caused to deceased defendant No. 4, particularly when the legal heirs of defendant No. 4, who were parties to the execution case, did not challenge the decree passed against them. Thus, the other judgment-debtor could nave no grievance to the executability of the decree, particularly when they did not file any objection pursuant to the notice under Order 21, Rule 22, C. P. C. Further it is argued by the learned counsel for the petitioner that even though the Executing Court found that the decision dated 21-11-1997 passed in O. J. C. No. 6771 of 1997 (reported in 1998 AIHC 1814) was applicable to the facts and circumstances of the case at hand, the same was not applied on the ground that the said decision in the aforesaid O. J. C. was an unreported one and only a photo copy thereof was filed. ( 6 ) LEARNED counsel for opposite parties 1 to 5 on the other hand, supporting the judgment passed by the Executing Court, submits that the legal heirs of deceased defendant No. 4 were neither brought on record in the suit, nor were they made parties to the execution proceeding and adding to this, it is further submitted that since the final decree was passed against defendant No. 4, the decree lost its executability, and in other words the above decree was a nullity. ( 7 ) ON perusal of the impugned order of the Executing Court, more specifically paragraph 14 of the same, it appears that no order was passed by the Civil Court on the petition of the plaintiff for substitution of the legal heirs of deceased defendant No. 4 in Title Suit No. 11 of 1984. The order is silent whether such petition was allowed or rejected. The impugned order further reveals that the case was posted to 14-2-1994 for taking steps by the plaintiff. Since no order was passed specifically allowing the substitution, no notices were sent to the proposed legal heirs inviting their objection to the final decree proceeding. The order is silent whether such petition was allowed or rejected. The impugned order further reveals that the case was posted to 14-2-1994 for taking steps by the plaintiff. Since no order was passed specifically allowing the substitution, no notices were sent to the proposed legal heirs inviting their objection to the final decree proceeding. The Civil Judge (S. D.), 1st Court, Cuttack held that the plaintiff in Title Suit No. 11 of 1984 was not absolved from his duties and responsibility for pressing the substitution petition dated 7-1-1994 and on the other hand, he preferred to remain silent resulting in non-substitution of the legal heirs of deceased defendant no. 4. It was further found by the Civil Court that even though notices were duly served on the proposed legal heirs of deceased defendant No. 4 inviting their objection, they did not turn up. The ultimate finding of the executing Court is that the final decree was drawn up, sealed and signed without substitution. Relying upon the decision of this court reported in AIR 1990 Orissa 36 (Seria bewa v. Balaram Puhan), the Court held that the decree passed against a dead man is a nullity. The decision rendered in O. J. C. No. 6771 of 1997 (reported in 1998 AIHC 1814) (Gobinda Chandra Tripathy v. Rama chandra Tripathy) referred to by the petitioner was not accepted by the Executing court on the ground that the aforesaid unreported judgment was not safe to be accepted, a copy of the same had also not been served on the Advocate for the petitioner. Furthermore, it was simply a photo copy arid not a certified copy of the order. The Executing Court proceeded with the matter relying upon the judgment in the case of Saira Bewa v. Balaram Puhan (supra) and held that the present execution proceeding is not maintainable as the same was meant to execute a decree passed against a dead man which was a nullity, and accordingly dismissed the execution case. ( 8 ) NOW let me first examine whether the trial Court was correct in coming to the aforesaid conclusion relying upon the decision reported in AIR 1990 Orissa 36 (supra ). ( 8 ) NOW let me first examine whether the trial Court was correct in coming to the aforesaid conclusion relying upon the decision reported in AIR 1990 Orissa 36 (supra ). In this regard my attention was drawn by the learned counsel for the opposite parties to the decision of this Court reported in AIR 1961 Orissa 141 (Jagannath Samantra v. Sudarsan Das), wherein a single Judge of this Court held that the final decree passed in a partition suit against a dead person was a nullity. The law expressly provides that sufficient opportunities must be given to the parties to file objection to the report of the commissioner before the final decree is passed. In the case of Jagannath Samantra v. Sudarsan Das (supra), no attempt was made to bring the legal heirs of the deceased defendant, who died during the pendency of the suit on record. It is well settled-that at the stage of final decree, when the rights of the parties have to be declared, opportunities should be given to the legal representatives of the deceased parties to agitate their rights. In case there be any controversy as to such rights, it is at this stage that the parties shall present their case before the final decree is passed. In the case reported in Jagannath samantra v. Sudarsan Das (AIR 1961 Orissa 140) (supra), the affected parties had challenged the final decree and it was held by this Court that it was against natural justice that the rights of the parties should be adjudicated in their absence, or after their death in the absence of their legal representatives, thus depriving them of the opportunity to place their case on their rights or file any objections, if any, to the report of the Commissioner. ( 9 ) IN the decision of the Division Bench of this Court, reported in AIR 1990 Orissa 36 (Saria Bewa v. Balaram Puhan), it was observed that a suit for partition and some other category of suits stand on a different footing. In a suit for partition, the Civil Procedure Code provides that the Court may pass a preliminary decree declaring the rights of the parties interested in the property and give such further direction as may be required if it finds that the partition or separation cannot be conveniently made without further inquiry. In a suit for partition, the Civil Procedure Code provides that the Court may pass a preliminary decree declaring the rights of the parties interested in the property and give such further direction as may be required if it finds that the partition or separation cannot be conveniently made without further inquiry. Law is well settled that even though a preliminary decree is passed in a suit for partition, it is still a pending suit in which the Court is ro pass a final decree after making necessary enquiries, though it is conclusive and final so far as the matters dealt with by the Court are concerned. After passing of the preliminary decree, each of the parties, whose right and interest to the property have been declared therein, continues to be a party in the suit in the final decree proceeding and is entitled to take part in the further enquiry to be held by the Court in the matter of actual partition by metes and bounds with the help of the Commissioner or otherwise. ( 10 ) IT is further held in the aforesaid decision that there would be no question of abatement since the death of defendant No. 2 occurred after the preliminary decree was passed and during the pendency of the final decree proceeding. But his legal representatives were necessary parties to the final decree proceeding in whose absence the proceeding could not be continued. This situation can be equated with a case where final decree proceeding is initiated and continued without notice to the parties to the proceeding. The only effect of Orissa Amendment to Order 22, Rule 12, C. P. C. is that rr. 3, 4 and 8 of the said Order do not apply to the final decree proceeding. But it does not sanction that the final decree proceeding shall continue without the legal representatives of a deceased party whose interest is likely to be affected by the final decree. The final decree passed in the absence of necessary parties must be held to be a nullity as it dealt with the rights of the parties without notice to them and in their absence. ( 11 ) LEARNED counsel for the petitioner submits that the case at hand stands on a different footing because here notices were issued to the legal heirs of deceased defendant No. 4 in the matter of substitution. ( 11 ) LEARNED counsel for the petitioner submits that the case at hand stands on a different footing because here notices were issued to the legal heirs of deceased defendant No. 4 in the matter of substitution. Service of notices was held to be sufficient, but they preferred not to appear and the fact remains that no order was passed on the application for substitution either way. Reliance was placed by the learned counsel for the petitioner on the judgment of this Court in O. J. C. No. 6771 of 1997 (Gobinda chandra Tripathy v. Rama Chandra tripathy) delivered on 21-11-1997 (reported in 1998 AIHC 1814 ). On perusal of the aforesaid decision (photo copy of which has been supplied by the petitioner) this Court held that it is a matter entirely at the discretion of the legal representatives of a deceased party against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, or to abandon that obvious technical objection and fight the case on merit. It was further observed in the aforesaid case that the requirement of a legal representative to be brought on record as indicated above is not to fasten him the liability without giving him an opportunity of being heard. The principle is based on fairplay and by statutory recognition and extension of the principles of natural justice. There may be cases where non-substitution would result in prejudice. The ultimate question is whether the party is prejudiced. If the party himself supports the action, and does not challenge it, another person cannot say that prejudice has been caused to the non-substituted party. This is the view of the Division Bench in a proceeding under Articles 226 and 227 of the constitution of India in O. J. C. No. 6771 of 1997 rendered by Hon'ble Mr. Justice A. Pasayat (as his Lordship then was and hon'ble Mr. Justice S. C. Dutta ). But neither the earlier decision of this court reported in AIR 1990 Orissa 36 (supra) has been cited before the Division Bench nor taken into consideration by the said Division Bench while deciding O. J. C. No. 6771 of 1997 (reported in 1998 AIHC 1814 ). The law settled in the decision reported to by the learned single Judge noticing divergent views of this Court in earlier decisions. The law settled in the decision reported to by the learned single Judge noticing divergent views of this Court in earlier decisions. The decision in AIR 1990 Orissa 36 (supra) rendered by the Hon'ble Mr. P. C. Mishra and hon'ble Mr. A. Pasayat, JJ. (as his Lordship then was) set the divergent opinions at rest by agreeing with the view expressed in AIR 1961 Orissa 140, that the final decree passed in absence of necessary party must be held as a nullity as it dealt with the right of a party without notice to him and in his absence. So there is nothing to take a different view as expressed in AIR 1990 Orissa 36 (supra ). Added to this, I may refer to the provision of the Order 26, Rules 13 and 14, c. P. C. Rule 13, C. P. C. provides that where a preliminary decree for partition has been passed, the Court may issue a commission to such person, as it thinks fit to make the partition or separation according to the rights as declared in such preliminary decree: Then Rule 14 provides for the procedure of the Commission. Sub-rule (2) of Rule 14 makes it clear that after the Commissioner prepares and signs a report apportioning the share of each party and distinguishing each share by metes and bounds, the parties may file objections to the report of the Commissioner, and that the Court after hearing any objections which the party may make to the report shall confirm, vary or set aside the same. ( 12 ) IN the present case as defendant No. 4 died during the final decree proceeding and admittedly the legal heirs of deceased defendant No. 4 have not been substituted, in my considered opinion, the order passed by the Executing Court relying upon the decision reported in AIR 1990 Orissa 36 [supra) is correct and legally valid, which requires no interference. ( 13 ) THE Civil Revision being devoid of merit, is dismissed. Petition dismissed.