ORDER : SREENIVAS HARISH KUMAR, J. ORDERS ON MEMO OF WITHDRAWAL OF THE APPEAL AND I.A. NO. 1/2020 The appellants’ counsel has filed a memo seeking permission to withdraw the appeal. The memo states that the appeal has become infructuous as final decree passed in the suit has already been executed by respondent No.1. 2. Respondent No.1 has got filed an application under Section 151 r/w Order 41 Rule 33 of CPC seeking modification of the share granted to her in the preliminary decree, she seeks enhancement of her share to 1/5th in the suit properties. In the affidavit subjoined with the application, the first respondent has stated that in the suit O.S. No. 201/2001 filed by her for partition and separate possession, she was granted 4/40th share in the suit properties and the preliminary decree drawn to that effect was challenged by the defendants by filing R.F.A. No. 3025/2010 before this court. This appeal was dismissed on 16.11.2005. Then she initiated proceedings for drawing up of final decree, i.e., F.D.P No. 15/2011; final decree was also drawn on 18.07.2017 and now this appeal is against the final decree. She has stated that in view of the judgment of the Supreme Court in Civil Appeal No. 32601 of 2018 (Vineeta Sharma V. Rakesh Sharma and others), she becomes entitled to a larger share than what was granted to her in the preliminary decree. Since this appeal is continuation of the suit, preliminary decree can be modified by this Court. 3. Sri K.S. Patil for the appellants and Sri Dinesh Kulkarni for the respondents argued on the memo as well as on the application. 4. Sri K.S. Patil submitted that the respondent initiated two execution proceedings to execute the final decree. She filed Execution Case No. 28/2018 to take possession of ‘A’ schedule property. On 21.06.2018 she filed a memo stating that she was put in possession. In respect of schedule ‘C’ property, the commissioner appointed by the Court gave a report that the house comprised therein was not possible to be divided. So far as ‘B’ schedule property is concerned, she filed Execution Petition No. 87/2017 and received an amount of Rs.4,89,900/- towards full and final satisfaction of her claim. She has initiated a miscellaneous proceeding, i.e., Misc. No. 15/2019 for determination of mesne profits. So far as ‘B’ schedule property is concerned, she filed Execution Petition No. 87/2017 and received an amount of Rs.4,89,900/- towards full and final satisfaction of her claim. She has initiated a miscellaneous proceeding, i.e., Misc. No. 15/2019 for determination of mesne profits. Therefore, it is his argument that the final decree has become conclusive, it cannot be reopened now. The first respondent ought to have filed cross objection, if according to her she was entitled to more share. The appellants are not interested in pursuing the appeal. The preliminary decree cannot be modified now and I.A. No. 1/2020 is misconceived. 5. Sri Dinesh Kulkarni submits that appeal is a continuation of suit. The appeal pending before the Court is against final decree. The first respondent might have executed the final decree and taken possession of ‘A’ schedule property and received an amount of Rs.4,89,900/-. This does not come in the way of modifying the preliminary decree, as, in case this appeal is allowed, the final decree will be set aside and therefore there is scope for seeking modification of the preliminary decree for enhancing the share of the first respondent in view of the ratio laid down by the Supreme Court in the case of Vineeta Sharma. 6. Sri Dinesh Kulkarni further submitted that Order 41 Rule 33 of CPC vests the Court with a wide power to grant any relief that a party is actually entitled to, there is no need to file cross objection. 7. Having heard both sides, the question to be answered now is whether one more preliminary decree can be drawn in view of the judgment of the Supreme Court in the case of Vineeta Sharma for enhancing the share of first respondent in the suit properties. 8. There is no dispute that any number of preliminary decrees can be drawn before partition is effected by metes and bounds. It is the final decree that results in actual partition by metes and bounds. But, if the final decree attains finality as is in this case, is there scope for modification of the decree as sought by the first respondent. Three decisions of the Supreme Court in this regard may be referred to here. In the case of S. Sai Reddy Vs. S. Narayan Reddy and others, reported in (1991) 3 SCC 647 , in paragraph Nos. Three decisions of the Supreme Court in this regard may be referred to here. In the case of S. Sai Reddy Vs. S. Narayan Reddy and others, reported in (1991) 3 SCC 647 , in paragraph Nos. 7 and 8, the Supreme Court has observed as under: “7. …… A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits. 8. Hence, in our opinion, the High Court has rightly held that since the final decree had not been passed and the property had not been divided by metes and bounds, clause (iv) to Section 29-A was not attracted in the present case and the respondent-daughters were entitled to their share in the family property.” (underlined by us) 9. In the case of Ganduri Koteshwaramma and another Vs. Chakiri Yanadi and another reported in (2011) 9 SCC 788 the Supreme Court at paragraph No.14 has observed as under: “14. 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 for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.” (underlined by us) 10. In the case of Prema Vs. Nanje Gowda and others reported in (2011) 6 SCC 462 the Supreme Court at paragraph no. 16 has observed as under: “16. In the case of Prema Vs. Nanje Gowda and others reported in (2011) 6 SCC 462 the Supreme Court at paragraph no. 16 has observed as under: “16. We may add that by virtue of the preliminary decree passed by the trial Court, which was confirmed by the lower appellate court and the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/ her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before the conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the court seized with the final decree proceedings is not only entitled but is duty-bound to take notice of such change and pass appropriate order.” (emphasis supplied) 11. Therefore, from the above three decisions of the Supreme Court, the position that becomes clear is that in the light of subsequent developments or supervening circumstances, preliminary decree can be drawn afresh or modified only before the final decree is drawn up. 12. In the case on hand, the first respondent seeks modification of the preliminary decree in view of the judgment of the Supreme Court in the case of Vineeta Sharma. The Hon’ble Supreme Court decided this case on 11.08.2020. It is not in dispute that the first defendant took over possession of schedule ‘A’ property on 21.06.2018 by executing final decree and that she also received money of Rs.4,89,900/-. It may be a fact that in respect of a house property as described in plaint schedule ‘C’, the Commissioner might have given a report about impossibility of effecting division. It does not mean that the final decree is still incomplete. The appellants herein have made an offer to first respondent to take over the entire house by valuing the share of every other share holder. It does not mean that the final decree is still incomplete. The appellants herein have made an offer to first respondent to take over the entire house by valuing the share of every other share holder. This indicates that there is a final decree in respect of house property. Pendency of miscellaneous proceeding for determining mesne profits is just a collateral proceeding and it cannot be treated as continuation of suit as the scope of the said proceeding is limited to determining mesne profits only, and nothing more. When the facts clearly indicate that the final decree has attained finality, it can be very well said that the first respondent is not entitled to reopen the case for seeking a larger share. In this context, reference may be placed to one judgment of the Division Bench of this Court in the case of C.L.Seetharam Vs. J.C. Rudra Sharma reported in ILR 1997 KAR. 1931. Though this decision pertains to a case under Karnataka Rent Control Act, 1961, the actual question involved was about the conclusiveness of the judgment or decree of a Court. It is held: “17. A Division Bench of this Court in the case of VENKATARAMANA BHATTA vs P.N. BALASUBRAMANYA SHETTY has held that the judgment rendered by this Court in West Coast Paper Mills Ltd. Vs. Indira Rao (ILR 1991 KAR 2516) is prospective and not retrospective. Therefore the Court held that any decrees passed prior to 1.7.1986 (i.e. the date on which Section 31 of the Act was struck down) are enforceable. Following the judgment of the Supreme Court in the case of Rangarao vas Kamalakant (1995 Supp (1) S.C.C. 271) the Division Bench in the above said C.R.P. No. 5606/89 at paragraph-16 & 17 has held as follows: “16. In RANGA RAO’s case the landlord/ appellant had filed a suit for possession which ended in a compromise decree. Subsequently, the notification exempting certain categories of buildings from the purview of C.P. & Berar Letting of Houses and Rent Control Order, 1949 issued under clause 30 of the said order came to b e struck down on the ground that it was violative of Article 14 of the Constitution. Subsequently, the notification exempting certain categories of buildings from the purview of C.P. & Berar Letting of Houses and Rent Control Order, 1949 issued under clause 30 of the said order came to b e struck down on the ground that it was violative of Article 14 of the Constitution. When the decree was sought to be executed, the tenant albeit the compromise raised an objection that the decree became unexecutable since the civil court had lost jurisdiction to pass an order of eviction in view of the decision. That objection, although overruled by the lower Courts, was upheld by the High Court. Allowing the landlord’s appeal, the Supreme Court held – When the compromise memo fruitioned into a decree on 3.1.1985, the Civil Court had every jurisdiction to pass such a decree. It is true the notification issued under clause 30 of C.P. and Berar Letting of Houses and Rent Control Order,1949 came to be struck down as violative of Article 14 of the Constitution. This was on 19.6.1985. The decision rendered thereunder cannot have any effect of rendering the decree passed on 3.1.1985 a nullity which decree has become final. No judgment of any court can have any retrospective operation because that is the plenary power of Parliament (Legislature as well). The Courts do not have such power. If that be so, the High Court had clearly gone wrong in holding that the decree on the date of execution is a nullity. This view though in conflict with the view expressed in SHIVA RAO’s case having been expressed in a last decision prevails on the same and hold the view. 17. Following the principle laid down in the decision in RANGARAO’s case and applying the same to the facts in the present case on hand, it must be held that th e order of eviction passed had become final and subsequently declaration of Section 31 of the Act as void is effective only from the date of the order passed, the right which had already accrued to the landlords would not be divested though they had not taken possession in execution proceedings for the reason that even the second appeal preferred by the tenant/ L.Rs. was dismissed and the decree had become final for eviction and also it is to be noted that the landlord need not seek for eviction under Section 21 of the Act as he had already obtained the right to evict the tenants which had become final.” Following the judgment of the Division Bench in C.R.P. No. 5606/89 (D.D. 11.3.97) and for the reasons stated therein this revision petition is also, on this ground as well, liable to be dismissed. 17. Accordingly, the executing Court was justified in holding that the decree is executable. We do not find any ground to interfere with the order passed by the executing Court.” (emphasis supplied) 13. Here in this case the preliminary decree attained finality by drawing up of final decree which has even been executed. The first respondent being the plaintiff in the suit cannot seek enhancement of her share. The judgment of the Supreme Court in the case of Vineeta Sharma applies to only those cases where the preliminary decree has not attained finality. It is true that Order 41 Rule 33 of CPC confers the appellate Court with wide powers to pass any decree or order even in respect of a party who has not appealed for doing complete justice between the parties. In the case on hand the first respondent cannot take shelter under this provision for seeking enhancement when she herself admits to have taken possession and received money by executing the final decree. Therefore, the application filed by her is devoid of merits. It is dismissed. Consequently, the memo filed by the appellants is accepted, the appellants are permitted to withdraw the appeal. Appeal is dismissed as withdrawn.