The main legal point established in the judgment is that under Sec.146, Civil P. C., the appellants were entitled to file the appeal as persons claiming under the parties to the partition suit, and their applications for being added as parties to the suit should have been considered on merits.

Mahabir Prasad, J.

1. Mr. D. N. Varma for the respondents raises a preliminary objection to the maintainability of this appeal. He contends that the appellants were no parties to the partition suit nor to the final decree passed in that suit which is under appeal. No appeal against the decree is entertainable at their instance.

2. The facts are these. On 6-8-1926, two members of a joint Hindu family, Raghunandan Lal & his son Sankar, instituted a suit for partition of the joint family properties im-pleading five persons, other members of the family, as defts. A preliminary decree for partition was passed in 1929. There was an appeal against the preliminary decree to this Court. The decree was confirmed by this Court in 1932. It appears that during the pendency of the appeal one Lalmohar Lal came to be a purchaser of the interest of the plff. Raghunandan Lall to the extent of 4 annas in the joint family ptoperties, & he was substituted in the place of Raghunandan Lal. One Raghuraj Dubey was also substituted as a party to the suit as having purchased 4 annas interest of Kedar Lal, one of the defts, in the suit. In the year 1943 a pleader-commissioner was appointed to partition the properties & to carve out separate takha to Lalmohar Lal as representing the interest of Raghunandan, the plff. & Raghuraj Dubey as representing the interest of Kedar Lal, the deft. The pleader-commissioner made necessary allotments & submitted his report on 4-4-1944. It appears that before the Commissioner had made the allotments, three persons, who are the appellants before us, Basistha Lal, Banarsi Lal & Ramjanam Lal filed petitions before the Commissioner alleging that some of the properties which under the preliminary decree were to be partitioned had been purchased by them in execution of rent decrees against the joint family & were no longer divisible amongst the parties to the decree. On failing to get any relief from the commissioner, these persons filed petitions on 27-5-1944, before the Court, making the same allegations regarding purchase by them of some of the properties sought to be partitioned, & praying that those properties might be excluded from partition. The learned Subordinate Judge summarily rejected their applications as not being entertainable, & passed the final decree.

3. The appellants have filed this appeal against the final decree. They have also along with the memo, of appeal filed an application under Order 41 Rule 20 & Sec.151, Civil P. C. praying that they may be added as parties & be permitted to prosecute the appeal filed by them against the respondents. Mr. Tarkeshwar Nath appearing for the appellants contends that it was competent to the purchasers of some of the properties involved in the partition suit, Under Sec.146, Civil P. C., to prefer this appeal against the final decree, passed by the Subordinate Judge. Reliance is placed on a decision of the Madras H. C. in the case of Sitaramaswami V/s. Lakshmi Narasamma, 41 Mad 510, which certainly supports the contention. Sec.146 of the Code provides :

"Where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him."

In the Madras case, while the suit was pending in the District Munsifs Court, the suit property was mortgaged by the deft. to the appellant. On the suit being decreed by the Subordinate Judge in favour of the plff., the deft. did not prefer an appeal. The appellant, as the mortgagee of the suit property pending suit, alleging collusion between the plff. & the deft., filed an application in the District Court under Order 22, Rule 10, for an order allowing him to prefer an appeal, & also preferred an appeal against the decree. The District Judge dismissed both the petition & the appeal as incompetent. The appellant preferred to the High Court a civil Misc. Appeal & a Second Appeal against the decision respectively. It was held t