RAMA SHANKER DUBEY Vs. UMA SHANKER DUBEY

JUDGEMENT

(1.) S. K. Phaujdar, J. Learned counsel for both the sides are present. It is stated that respondent No. 1 is dead, but no substitution has been made. It is gathered that it was a partition suit and all the parties interested in the partition are already arrayed as plaintiffs or the defendants. Under these circumstances, substitution in this revision application may not be necessary for final decision of the present ap plication.

(2.) AT the instance of the present revisionists a suit for partition was filed con cerning three properties in Uttar Pradesh and one in West Bengal. The trial Court recorded a preliminary decree in respect of the three properties in Uttar Pradesh but refused to allow partition of the west Bengal property. This order in so far as it concerns refusal of partition of the West Bengal properly was challenged by the present plaintiff in this High Court in an appeal which fact is not disputed. The appeal, I am told, is still pending.

(3.) THE learned counsel for the revisionist relied upon a decision of the Karnataka High Court as reported in AIR 1978 Karnataka 76. In this case, the Hon'ble Court relied upon a decision of the Hon'ble Supreme Court and was of the view that there was nothing in the Code of Civil Procedure to prevent a civil court from preparing two preliminary decrees. THE facts before the Karnataka High Court re lated to a partition in which a preliminary decree was prepared, but subsequently due to death of certain parties there was change in devolution of interest in be tween the parties. A prayer was made for recording a subsequent preliminary decree so that the parties may not be compelled to go for a second litigation to establish their rights with the change of devolution of interest.