A. V. KRISHNA RAO, J.

( 1 ) THIS revision petition is preferred from the judgement in C. M. A. 38 of 1976 on the file of the court of Ist Additional District Judge, Guntur. C. M. A. No. 38 of 1976 itself was filed against an order in I. A. 5676 of 1973 in O. S. 481/63 on the file of the Principal District Munsifs Court, Guntur I. A. 5676 of 1973 was filed by the present revisions petitioner under o. 22 R. 10, and S. 151 C. P. C. for adding him as the second plaintiff in the suit. That application was dismissed and hence he preferred C. M. A. 38/76 which was also dismissed by the Ist Additional District Judge, Guntur.

( 2 ) O. S. No. 481 of 1963 on the file of the Principal District Munsiffs Court, Guntur was a suit in which a preliminary decree for partition was passed. The plaintiff, Nagasuri Venkateswarlu filed i. A. 2723/65 for the passing of the final decree. It was held that the property could not conveniently partition Act was therefore, S. 4 of the Partition Act was attracted. An application was filed for the appointment of a Commissioner on 13-9-1967. The fee of the Commissioner had to be deposited, that application was dismissed for non-compliance with the order of the court as to deposit. It is stated that the order dismissing the petition on 3-11-1967 was carried in appeal. On the dismissal of that appeal, the matter was carried in second appeal which was dismissed. The result was that I. A. 2723 of 1965 stood dismissed.

( 3 ) THE revision petitioners case is that he had actually purchased the half share to which the plaintiff Venkateswarulu was declared to be entitled under the preliminary decree and that Venkateswarulu was merely a benamidar for him and that the said Venkateswarulu had executed Ex. A-1 dated 12-11-1970 in his favour relinquishing the interest in the half share in the property declared in his favour by reasons of the preliminary decree. Subsequently , Venkateswarlu died in December, 1970. The petitioner basing his claim upon Ex. A-1 styled as a relinquishment deed, sought to come on record in the final decree proceedings as the second plaintiff.

( 4 ) THE said application was opposed by the defendant. Two contentions in the main were raised by the defendant in opposing the application filed by the revision petitioner under O. 22 R. 10 and s. 151 C. P. C. His first contention was that the order dated 3-11-1967 were by the application for the appointment of a Commissioner was dismissed, had become final and that the effect of that order is tantamount to a refusal to pass a final decree and that should have been appealed against and so long as that order stood, that is no suit pending and that, therefore, the application filed under O. 22 R. 10 did not lie. It was secondly urged that on the language of O. 22, R. 10 by virtue of Ex. A-1 there was not assignment, creation or devolution of any interest during the pendency of the suit. The first of the contentions viz. , that there is no pending suit did not find favour with the first appellate Court but the second of the contentions viz. , that O. 22 R. 10 was not attracted was accepted by the first appellate Court. The latter finding resulted in the dismissal of the petition preferred by the revisions petitioner.

( 5 ) IN this revision petition, it is contended by Sri T. Veerabhadrayya, for the petitioner, first that if O. 22 R. 10 is understood in the spirit in which it was enacted, the relinquishment deed Ex. A-1 will fall under one or the other of the words used viz. , assignment creation or devolution of any interest during the pendency of the suit. Even otherwise, it was contended by the learned counsel that this is case in which the inherent power of the court under s. 151 should be invoked in the ends of justice.

( 6 ) ON the other side Sri. P. L. N. Sarma contended that o. 22 R. 10 as held by the Court below is not applicable and when the specific provision under O. 22 R. 10 is not applicable, it must be taken that the mater is concluded against

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