The court has the power to implead necessary parties at any stage of the proceeding to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit.

This appeal by the defendants against a remand order involves a short but important point of law. The suit was for determination of the respective shares of the plaintiffs on effecting an imperfect partition of the scheduled land. On pleadings as many as 6 issues were framed of which issues Nos. 1, 3 and 5 were decided in favour of the plaintiffs. The learned Munsiff held that the plaintiffs had cause of action for the suit; that the suit was not barred by limitation; and also that the plaintiffs had title to the suit land. The suit was dismissed by him on the basis of his findings on issues Nos. 2 and 4 which related in one case to non-joinder of parties and in the other case to maintainability. The Court held that the suit being one for partition all the co-sharers were necessary parties and from the evidence it having been found that some co-sharers were not impleaded by the plaintiffs he decided issue No. 7 in favour of the defendants to hold that the plaintiffs were not entitled to any relief and accordingly dismissed the suit.

2. The learned lower appellate Court reappraised the evidence on issues Nos. 2 and 4 and came to the conclusion that although the bone of contention between the parties according to the Court below was whether one Ishan Mia was also a co-sharer being also a son of one Sagir Mohammad as it was the common case of the parties that Sagir Mohammad was one of the sons of Golam Mahammad whose claim was not disputed by either side, the finding of the learned Munsiff stood on shaky foundation as there was no evidence to support the theory that Sagir Mohammad was also known as Nawaz Mia. The suit therefore could not be dismissed for not impleading heirs of Ishan Mia, according to the learned appellate Court. It was further held that the suit being instituted on 5-9-1972 and the judgment therein being rendered on 29-11-1975 it would be governed by the provisions of the unamended C. P. C. and therefore under Order 1, Rule 9 the suit could not be dismissed for non-joinder of the parties. It was further observed that the learned Munsiff ought to have offered an opportunity to the plaintiffs to implead the necessary parties instead of dismissing the suit outright. On 20-4-1976 the plaintiffs-appellants filed an application in the appeal stating that in view of the objection raised by the defendants - respondents in the Court below on the score of non-joinder of necessary parties accepting which the Court below had dismissed the suit, they may be allowed to meet the objection and the parties named in the application may be allowed to be impleaded as respondents in the appeal and that they may be also impleaded as defendants in the suit by amending the plaint. The learned Assistant District Judge who heard the appeal allowed the same and remanded the suit for retrial with the direction that the Court below shall give an opportunity to the plaintiffs to implead necessary parties in the suit and to make necessary amendment in the plaint, accordingly.

3. In assailing the impugned judgment and decree the main contention raised before me by Mr. S.K.Laskar, the learned counsel appearing for the appellants is that the learned lower appellate Court erred in law in holding that the case was governed by the old (uttamcnded) C. P. C. in view of the settled law that there could be no vested right in respect of procedure and the 1976 C. P. C. Amendment Act not having made any saving in express terms in respect of the relevant provisions contained in Section 99 and Order 1, Rule 9 it ought to have applied to the case the amended provisions. He hits accordingly drawn my attention to the two provisos added by the Amendment Act to Section 99 as well its to O.1, R.9 which are, indeed, couched in the same phraseology, as follows

"Provided that nothing in the section (rule) shall apply to non-joinder of a necessary party".

4. Mr. Laskar further submits that in any case even if the matter is held to be governed by the unamended p