R. Bhaskaran, J.

This appeal is filed by the additional 26th defendant O.S.No.237 of 1963 on the file of the Munsiff’s Court, Nedumangad. The suit was filed for partition of 13 items. The Trial Court passed a preliminary decree on 23.5.1967 in respect of items excluding items 1, 2, 6 and 20 in item No.4. The plaintiff was granted a decree for partition of 119/576 shares. The appeal and second appeal against the preliminary decree ended in dismissal. Subsequently, the plaintiff filed an application I.A.No.253 of 1977 for final decree. Pending the final decree application, the 13th defendant died on 1.2.1980. His widow and children filed I.A.1345 of 1981 for impleading them as additional defendants. That was allowed. Defendants 22, 23, 25, 26 and 29 med C.R.P.No.2108 of 1983. This Court disposed of the C.R.P. in the following words:

“10. When a defendant dies and if no legal representative is impleaded within time the result according to O. XXII, R.4(3) is that the suit as against the deceased defendant will abate in cases where the right to sue survives. As already stated by me the persons impleaded as legal representatives could raise only contentions which were available to the deceased defendant. In this case even items 12 and 13 were allowed to be partitioned by the preliminary decree with the deceased 18th defendant on the array of parties. If that decision is held binding on additional defendants it will definitely work hardship on them. When they are entitled to raise their independent claims necessarily the preliminary decree may have to be reopened if that course becomes necessary on their contentions based on independent title”.

The C.R.P. was therefore partly allowed and the revision petitioners were permitted to raise their independent claim on items 12 and 13 including the plea of adverse possession and limitation. Subsequently the final decree Court dismissed the final decree application stating as follows:

“23. In this case, the alienation by Ist defendant as per Ext.A3 document was in 1918 M.E. which corresponds to 1943. If 12 years is computed from 1943 on awards in 1955 13th defendant has prescribed title by adverse possession and limitation. In the alternative, if the period of limitation or adverse possession is computed from the date of Ext.B1, additional defendants 23, 26 and 29 have prescribed title in 1973. It is pertinent to note that Ext.B1 would reveal the independent right held by additional defendants from 1961 onwards. They were impleaded only after 1 1973 as per order in I.A.1345/81. If so, additional defendants 23, 26 & 29 have prescribed title by adverse possession and limitation.

24. But, this is a stage in which we are considered with the question of passing a final decree in terms of preliminary decree. The title of the plaintiff is already declared in the preliminary decree proceedings and the decree has become conclusive. But, the preliminary decree is not binding against the additional defendants 22 to 29, since they are not parties to the proceedings, even though they are having independent title as on the date of suit. Hence the application is only to be dismissed: But, plaintiff can apply for passed a final decree after impleading the additional defendants for a binding decree. But he is at liberty to apply for pray final decree regarding other terms”.

2. The Appellate Court allowed the appeal and directed the Trial Court to proceed with items 4 and 5 of the plaint schedule property. The Appellate Court also set aside the final decree passed by the Trial Court and directed the Munsiff to reopen the preliminary decree in the light of the specific observation passed by this Court in C.R.P.No.2108 of 1983 arid afford opportunity to the petitioners in that C.R.P. to raise their independent claim and pass a supplemental preliminary decree in accordance with law as far as the claim over items Nos.12 and 13 of plaint schedule properties alone.

3. The 13th defendant was exparte. The appli