Judgment : 1. Rule. Heard finally with consent of the learned Counsel for the parties. 2. Challenge in the present writ petition is to the order dated 2-5-2013 passed by the executing Court whereby the application that was moved by the original plaintiff for deleting the name of defendant No.3 from the final decree proceedings on the ground that she had expired came to be rejected. Hence, two questions arise for determination: (a) Whether a preliminary decree can be modified on account of intervening circumstances? and (b) What is the effect of refusal to modify the preliminary decree? 3. Few facts giving rise to passing of the impugned order are that the petitioner No.1 is the original plaintiff who had filed Regular Civil Suit No.340 of 2001 for partition and separate possession. The suit came to be partly decreed on 21-12-2010. It was held that the plaintiff had 1/6th share in the suit properties. Similarly, it was held that other defendants were also entitled to 1/6th share each. After the preliminary decree was passed, the decree holder sought to execute the said decree by initiating final decree proceedings. In said proceedings, an application was moved praying that the decree be sent to the Collector for execution. The decree holder filed another application on 27-4-2011 vide Exh. 5 praying that the name of defendant No.3 be deleted from the final decree proceedings on the ground that she had expired on 26-6-1996. The application was not specifically opposed by the judgment debtors and by the order dated 2-5-2013, the application below Exh.5 came to be rejected on the ground that the fact of death was not brought to the notice of the Court when the suit was pending. It was held that deleting the name of defendant No.3 would amount to the executing court going beyond the decree. Said order is under challenge in the present writ petition. 4. Shri S. G. Karmarkar, the learned Counsel appearing for the petitioners submitted that the executing Court erred in rejecting the application moved by the decree holder. He submitted that the suit was for partition and separate possession and only a preliminary decree had been passed by the trial Court. As said preliminary decree was under execution, on account of death of one of the parties said decree could be modified in view of change of circumstances. He submitted that the suit was for partition and separate possession and only a preliminary decree had been passed by the trial Court. As said preliminary decree was under execution, on account of death of one of the parties said decree could be modified in view of change of circumstances. In this regard he placed reliance decision of the Supreme Court in Ganduri Koteshwaramma and another vs. Chakiri Yandi and another, 2012(1) Mh.L.J. 613. He, therefore, prayed for setting aside the impugned order. 5. The sole respondent has been duly served with notice for final disposal, but he has not chosen to contest the proceedings. Considering the issues as arising, this Court had on 9-2-2015 requested Shri V. V. Bhangde, learned Counsel who was present in the Court to assist it in the adjudication of the present writ petition. Accepting said request, the learned Counsel submitted that unless a final decree was passed in a suit for partition, the preliminary decree could be modified on account of the change of circumstances. In that regard, he drew attention of the Court to the judgment the Division Bench of this Court in Parashuram Rajaram Tiwari vs. Hirabai Rajaram Tiwari and others, AIR 1957 Bombay 59. He submitted that aforesaid view has been subsequently approved by the Supreme Court in Phoolchand and another vs. Gopal Lal (1967) 3 SCR 153 . He, therefore, submitted that modifying the preliminary decree would not amount to going beyond the decree and, therefore, the executing court was not justified in refusing the request as made by the decree holder. He also brought to the notice of this Court the subsequent decision in Prema vs. Nanje Gowda and others, (2011) 6 Supreme Court Cases 462 and Ganduri (supra). He, however, submitted that if the executing Court refuses to modify the preliminary decree, then said adjudication is required to be challenged under Section 96 of the Code of Civil Procedure as it would amount to refusal on the part of the executing Court to grant share to the decree holder and the same would amount to a decree. He, therefore, submitted that though the executing Court erred in refusing to modify the preliminary decree, the order impugned was required to be challenged by way of appeal under Section 96 of the Code. In support of said submission, he relied upon judgment of the Division Bench in Parshuram Tiwari (supra). He, therefore, submitted that though the executing Court erred in refusing to modify the preliminary decree, the order impugned was required to be challenged by way of appeal under Section 96 of the Code. In support of said submission, he relied upon judgment of the Division Bench in Parshuram Tiwari (supra). 6. The facts indicate that the present petitioner No.1 – original plaintiff had filed suit for partition and separate possession that came to be decreed on 21-12-2010. Respective shares of the parties to the extent of 1/6th each was determined. In execution proceedings, the petitioner No.1 had moved an application deleting the name of original defendant No.3 from the array of parties on account of her death. The legal position as regards nature of a preliminary decree is well settled. In para 17 of the decision in Ganduri Koteshwaramma (supra), it has been observed thus: “17. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment of the court to amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties having regard to the changed situation.” 7. A somewhat similar question was considered by the Division Bench in Parshuram (supra). After passing of a preliminary decree, the plaintiff therein had sought permission to amend the same on account of death of one of the defendants. The request of the plaintiff therein to amend the decree was rejected by the trial Court and said adjudication was challenged in appeal. It was held that the plaintiff was entitled to seek amendment in the preliminary decree and that refusal by the executing Court was not justified. The request of the plaintiff therein to amend the decree was rejected by the trial Court and said adjudication was challenged in appeal. It was held that the plaintiff was entitled to seek amendment in the preliminary decree and that refusal by the executing Court was not justified. This decision of the Division Bench was considered by the Supreme Court in Phoolchand (supra) and it was held that in a partition suit, the Court had jurisdiction to amend the shares suitably even if a preliminary decree had been passed and a member of the family dies thereafter. Aforesaid decision of the Supreme Court has been considered in its subsequent decision in Prema (supra). In view of aforesaid legal position, it is clear that a preliminary decree in a suit for partition could be suitably modified on account of intervening circumstances prior to passing of final decree. 8. The second question which requires consideration is the effect of refusal by the executing Court to modify the preliminary decree. Said contingency was considered by the Division Bench in Parshuram (supra) wherein it was held that refusal of the trial Court to modify the decree of partition by altering shares amounted to determining the rights of the parties and was, therefore, a decree. It was held that against such an adjudication which had the force of a decree, an appeal would lie. Hence, aforesaid submission made by Shri V. V. Bhangde, learned amicus curiae, will have to be accepted. In the present case, the executing Court by passing the impugned order dated 2-5-2013 rejected the request made on behalf of the petitioner No.1 to modify the respective shares of the parties. The said adjudication is, therefore, required to be challenged by way of appeal before the first appellate Court. Hence, the present writ petition seeking quashing of aforesaid adjudication cannot be entertained on account of availability of an alternate statutory remedy. The Court places on record its gratitude for the assistance rendered by Shri V. V. Bhangde, Advocate. 9. Considering aforesaid position of law, the following order is passed: (1) It is held that the order passed by the executing Court on 2-5-2013 whereby it rejected the application below Exhibit-5 amounts to refusal to modify the preliminary decree. The Court places on record its gratitude for the assistance rendered by Shri V. V. Bhangde, Advocate. 9. Considering aforesaid position of law, the following order is passed: (1) It is held that the order passed by the executing Court on 2-5-2013 whereby it rejected the application below Exhibit-5 amounts to refusal to modify the preliminary decree. The petitioners if aggrieved by said order which has the force of a decree can challenge the same under Section 96 of the Code if so advised. Hence, the writ petition challenging the said order is not tenable. (2) Rule disposed of in aforesaid terms with no order as to costs.