A third party can be added as a defendant under Order 1, rule 10, civil Procedure Code, after a preliminary dercee is passed in a partition suit, if the Court thinks it necessary.

( 1 ) THIS revision petition give rise to a short question of law, viz. , s whether a third party can be added as a defendant under Order 1, rule 10, civil Procedure Code, after a preliminary dercee is passed in a partition suit.

( 2 ) THE relevant facts for appreciating the question involved, may briefly be stated. The 1st respondent filed O. S. No. 99 of 1971 against the 2nd and 3rd respondents herein for partition of the plaint-schedule properties between himself and the two defendants. The 1st respondent (plaintiff) and the 3rd respondent (2nd defendant) are the sons of the 2nd respondent (1st defendant) by his second wife. Subsequently a consent preliminary decree was passed in the suit. The petitioner, who is the eldest son of the 1st defendant by his first wife and the step-brother of the plaintiff and the 2nd defendant, filed I. A. No. 85 of 1972 to implead him as one of the defendants in the said suit, contending that his step-brothers and father conspired and got filed the suit behind his back to defraud him and that he has interest in all or some of the suit properties. The court below dismissed the application holding that the petitioner did not state in his affidavit the interest he had in the plaint-schedule properties and that the earlier partition pleaded by the defendants-respondents is probable. Hence this revision.

( 3 ) I have perused the affidavit in the i. A. and it is not correct to state that the petitioner has not stated about his interest in the plaint-schedule properties. He has averred in the affidavit filed in support of the petition that he has interest in all or some of the properties and that his step-brothers and father have conspired to defraud him and obtained the consent preliminary decree to the detriment of his interests and as such he must be impleaded as a party. Having regard to the fact that he is one of the sons of the 1st defendant and the step-brother of the plaintiff and the 2nd defendant, and to the other averments made in the petition to implead, it must be said that he is a necessary party to the suit for adjudicating all the questions involved.

( 4 ) BUT Sri M. Lakshmana Rao, the learned counsel for the respondents, relying on a decision of the Supreme Court in Venkata raddy v. Pethi Raddy, raises an objection that adding of parties does not arise under Order 1, rule 10, after the preliminary decree ii passed. According to him a preliminary decree is a decision which is final and is unalterable except by resort to such provisions of the Code of civil Procedure permitting reversal, modification, etc. In the abovesaid case the Supreme Court had to interpret a clause in the proviso to section 28-A of the Provincial Insolvency Act. The point that arose was whether the preliminary decree for partition obtained by sons of the insolvent and which was affirmed in second appeal can be regarded as a final decision. The sons filed a suit for partition implcading the alleged purchase of the share in the joint family. The Supreme Court held that the sale made by the Official Receiver during the insolvency of the father was finally decided by a competent Court inasmuch as that Court decided that the sale was of no avail to the purchaser as the official Receiver had no power to make the sale and that nothing more was required to be established by the appellent before being entitled to the protection under the proviso to section 28-A. So, the Supreme Court was mainly concerned with the meaning to be given to the expression "final decision" by a competent Court. But under Order 1, rule 10 (2), Civil Procedure Code, the Court can order that the name of any person who ought to have been joined, be added to enable it to adjudicate upon all the questions effectually and completely. In a suit for partition the proceedings do not become final unless a final decree is passed. It is only the final decree that ends in the termination of a suit. The Supreme court only pointed out that under section 97, C

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