B.C. Chakrabarti J: This is an appeal from an order of dismissal of an objection under S. 47 of the Code of Civil Procedure being Misc. Case No. 56 of 1973 of the 3rd Court of learned Subordinate Judge at Alipore.

2. The following facts are not in dispute:

The respondent Suresh Chandra Bhadra as plaintiff institute a suit for partition, Title Suit No. 48 of 1958 of the 3rd Court of learned Subordinate Judge at Alipore, against Phanibhusan Dutta and others. A preliminary decree was passed on contest on 8.12.65 by the aforesaid decree 8 annas share of the plaintiff was declared and separate allotment of 4 annas share of the defendants 3 and 4 were directed. After the passing of the preliminary decree phanibhusan Dutta who was defendant No. 1 in the suit died on 2.4.1967. On the application of the plaintiff dated 29.6.1967 the heirs of Phanibhusan Dutta namely his widow Amiya Bala Dutta (appellant before us) 6 sons and 2 daughters were brought on record. Subsequently a Commissioner for effecting partition was appointed, the parties having failed to effect amicable partition in terms of the preliminary decree. The final decree was passed on 6.5.1969.

3. Thereafter the plaintiff de