S.N.Jha, J.

1. This civil revision by defendant no. 5 is directed against the order dated 18.6.99 and the subsequent orders rejecting his petition objecting to the proposed carving out of the shares of defendant nos. 1, 6 and 7 in a final decree proceeding.

2. The plaintiff-opposite party no. 10 Md. Umar filed Partition Suit No. 165 of 1983 for partition of his 829/6470 share in the joint family properties. A preliminary decree defining the plaintiffs share alone was passed on 9.4.85. The properties, thus, remained joint with the defendants. Appeal (F.A. No. 178 of 1986) preferred in this Court against the preliminary decree was dismissed in default. Final decree was thereafter prepared on 27.4.88. In course of time delivery of possession through process of court was also effected and the plaintiff was put in possession of the lands allotted to him. Defendant no. 5, it appears, filed Partition Suit No. 330 of 1994 for partition of his share, which was dismissed. Appeal (Title Appeal No. 47 of 1997) is said to be pending before the District Judge.

3. Sometime in the year 1994 defendant nos. 1, 6 and 7 filed application for carving their separate Pattis in Partition Suit No. 165 of 1983. On 19.8.94 the court gave certain direction to the Advocate Commissioner. It appears that the directions were not given effect to on account of pendency of the Partition Suit No. 330 of 1994. On 23.8.97 defendant nos. 1, 6 and 7 filed application for direction to the Advocate Commissioner to proceed with the work of preparation of final decree pursuant to the earlier order dated 19.8.94, The prayer was objected to by defendant no. 5 on the ground that as the final decreee had already been prepared in the suit, the court had become functus officio and it had no authority to issue any direction to the Commissioner. The objection was overruled and the Commissioner was directed to go ahead with the work. On 27.11.97 the Commissioner submitted his report containing the particulars of the lands allotted to the defendants in separate Pattis. Defendant no, 5 filed yet another objection which was rejected on 4.10.97. He came to this Court in C.R. No. 2068 of 1997. From the order of this Court dated 22.4.99 passed in the said Civil revision it appears that an argument was advanced on behalf of defendant no. 5 to the effect that although in a partition suit more than one preliminary decree can be passed, after the final decree is passed, the court has no power to pass any preliminary decree. Reliance was placed on a decision in Phoolchand vs. Gopal Lal, AIR 1967 Supreme Court 1740. This Court by its aforesaid order directed the trial court to consider as to whether "at the instance of defendants 1, 6 and 7 in the year 1994 even on payment of court fee, their shares can be defined and a preliminary decree for partition can be passed in the partition suit". By the impugned order dated 18.6.99 the court below reiterating its previous order has held that the court is competent to carve out the shares of defendant nos. 1, 6 and 7.

4. The same argument, as was advanced on behalf of the petitioner in the previous civil revision, has been made, that is, the final decree having been passed in the suit the court has no jurisdiction to carve out separate shares or pattis of defendant nos. 1, 6 and 7. Frontal reliance has been placed on the case of Phoolchand vs. Gopal Lal (supra).

5. The submission, I am afraid, is based on misunderstanding of law. What the Supreme Court has held in Phoolchands case is that in partition suits preliminary decree already passed can be varied or amended and, thus, more than one preliminary decree can be passed, but this cannot be done after the final decree is passed. That is to say after final decree is passed, the preliminary decree cannot be varied or modified. There is no question of varying, amending or modifying the preliminary decreee in the present case. As noted above, the preliminary decree was passed with respect to t