S.C. Dharmadhikari, J.

This appeal challenges an order passed by the learned Single Judge on 5th December, 2008 in Notice of Motion No. 3791 of 2008.

2. The undisputed facts are that, Civil Suit No.2633 of 2007 is filed in this court by the first respondent-plaintiff. The appellants before us are the heirs and legal representatives of original defendant No. 8. The respondents to this appeal are the other defendants. The further undisputed fact is that the prayers in the suit are that the property, more particularly described in the schedule annexed and marked as Annexure “A” to the plaint, be partitioned by metes and bounds and vacant and peaceful possession thereof be handed over to the plaintiff in respect of her 6.25% share and the balance be distributed between the defendant Nos.1 to 16. The other prayers are either in the alternative or in furtherance of the main prayer for partition.

3. It is common ground that in a notice of motion being Notice of Motion No.3536 of 2007 moved in the said suit, appeared before the learned Single Judge on 23rd September, 2008 and at the hearing of the same, the court proceeded to pass a decree of partition and separate possession