The court has the competence to pass a fresh preliminary decree in a partition suit if circumstances justify the same, and it is entitled to consider subsequent developments like a compromise between the parties.

( 1 ) THE principal question that arises for decision in this revision petition is whether the court which passed a preliminary decree in a suit for partition of properties including lands assessed to revenue, has competence and duty to take into account any compromise between the parties subsequent to such preliminary decree, and to pass a fresh decree in accordance with such compromise.

( 2 ) THE respondent herein was the original defendant in O. S. No. 186 of 1925, a suit for partition, on the file of the Civil Judge, Junior Division, Hon-navar. A preliminary decree was passed in that suit. He made an application which was styled as a Darkhast application, praying that he might be given possession of a half share in the suit lands assessed to revenue and of 3/8th share in the timber and other materials out of the demolished suit house. The petitioner herein filed objections to that application, pleading, inter alia, that subsequent to the preliminary decree, a compromise was entered into between the parties, under which each was given certain lands and gave up his rights in other lands, and that in view of the compromise, the application was not maintainable.

( 3 ) THE Civil Judge. (Junior Division) overruled the petitioner's objections, appointed a commissioner for apportioning the respondent's 3/8th share in the building materials, and directed that the decree should be sent to the Collector for effecting the partition of lands assessed to revenue,

( 4 ) AGAINST that order, the petitioner preferred an appeal to the Civil Judge, Karwar, who dismissed the appeal. Feel- ing aggrieved, the petitioner has come up in revision.

( 5 ) MR. T. S. Ramachandra, learned counsel for the petitioner, urged that when the petitioner pleaded that a compromise was entered into between the parties subsequent to the preliminary decree, the learned Civil Judge, (Junior Division) should have enquired whether there was such a compromise and if he was satisfied that there was a lawful compromise, he should have made a decree or order in accordance with it. Mr. Kama-chandra contended that without deciding first whether there was a compromise, it was not open to the learned Civil Judge, (Junior Division), to send the decree to the Collector under Order 20, Rule 18 C. P. C. and to appoint a Commissioner for apportioning the building materials.

( 6 ) THE rival contention of Mr. K. L. Bhatta, learned counsel for the respondent, was that after the preliminary decree was made in respect of lands assessed to revenue, the learned Civil Judge, (Junior Division), became functus officio and could not go into the question whether the parties had subsequently entered into a compromise. In support of his contention Mr. Ehatta referred to the following observations of this Court in Narasu v. Narayan, AIR 1959 Mys. 233 at p. 234:

"a decree passed under Rule 18 (1) of Order 20 directing partition by the Collector cannot be said to be a preliminary decree. So far as Civil Courts are concerned it is final for all purposes, though the partition of property may remain to be effected by the Collector. . . . . The Court which passed a decree must be deemed to have become a functus officio after passing the decree. "

( 7 ) ON the other hand, Mr. Ramachandra argued that even when the preliminary decree is in respect of partition of lands assessed to revenue, the court which passed that decree is competent to take into account subsequent developments like a compromise between the parties and to pass a fresh preliminary decree to accord with the altered situation. Mr. Ramachandra relied on the following observations of the Supreme Court in Phoolchand v. Gopal Lal, AIR1967 SC 1470 , [1967 ]3 SCR153 :

"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 iustify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree som

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