M. H. S. ANSARI, J.

( 1 ) AGGRIEVED against the order rejecting the application for impleading the unsuccessful petitioner, has filed the above Revision Petition.

( 2 ) THE suit O. S. No. 54 of 1981 has been filed by Respondent No. 1 against respondents 2 and 3 herein in respect of the properties left behind by one santh Singh. Respondent No. 1 claims to be the adopted son of Santh Singh respondent No. 2 - (Jugna Bai) is the second wife of the said Santh Singh and defendant No. 2 in the suit, Respondent No. 3 herein is daughter and is defendant No. 3 in the said suit. The petitioner herein claims to be a foster daughter of the said Santh Singh and entitled to a share in the estate of Santh singh by virtue of a Settlement Deed (Ex. B-2) and therefore claimed to be a necessary and proper party to the suit O. S. No. 54 of 1981. A preliminary decree was passed by the Court on 11-10-1990 and an application I. A. No. 697 of 1993 filed by the plaintiff for passing the final decree is pending adjudication and it is at this stage that the petitioner herein filed I. A. No. 1491 of 1993 for impleading her as a party to the said proceedings which by the order under challenge in the above Civil Revision Petition was dismissed.

( 3 ) SRI M. S. K. Sastry, learned Senior Counsel appearing on behalf of the petitioner contended that the order rejecting the application for impleadment of the petitioner suffers from material irregularity and failure to exercise jurisdiction vested in the Court below and if allowed to stand, it would occasion failure of justice and cause irreparable injury to the petitioner.

( 4 ) LEARNED Senior Counsel submitted that an application under Order 1 rule 10 (2), C. P. C. is maintainable and a party can be added at any stage of the suit. That a partition suit is deemed to be pending until a final decree has been passed. Learned Senior Counsel has also relied upon several judgments reference to which has also been made hereafter.

( 5 ) THERE can be no dispute with the aforesaid contentions of Sri m. S. K. Sastry, learned Senior Counsel for the petitioner that the partition suit stands disposed of only with the passing of a final decree and until the final decree is passed, a petition under Order 1 Rule 10, CPC is maintainable. In the instant case, admittedly final decree has not been passed and therefore it has to be held that the petition under Order 1 Rule 10, CPC filed by the petitioner is maintainable. There is ample authority for the said proposition vide Ramader Appala Narasinga Rao vs. Chunduru Sarada.

( 6 ) SRI Koka Raghava Rao, learned Counsel for the Respondents, however, submitted that a preliminary decree has been passed and shares have been allotted, there is no reason justifying the unsettlement of the settled position and there is no necessity for the petitioner to be impleaded as party at this stage of the proceedings of the suit. I cannot accede to the said contention.

( 7 ) IN Phoolchand and another vs. Gopal Lal, it was held that any partition suit by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided, the decision amounts to a decree and that there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances. It was also clarified in the said judgment that this can be done so long as the final decree has not been passed and also that such course of action is permissible only in partition suits. It would be appropriate to extract a relevant portion of the said judgment, which is as under:" (7) We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented

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