Impleading after the preliminary decree can only be allowed under exceptional circumstances, such as the death of a party or transfer of interests.

1. The question that arises for consideration in this Civil Revision Petition is whether in the final decree proceedings in a suit for partition an application for impleading will lie under 0.1 R.10 of the Code of Civil Procedure, 1908 even if the person sought to be impleaded would have been a proper party. The plaintiff in O. S. No. 59 of 1973 on the file of the Subordinate Judge, Kasaragod is the petitioner in this Civil Revision Petition. The above suit was filed by the plaintiff for partition and the defendant is none other than his brother. The grievance of the petitioner is against the order of the learned Subordinate judge allowing an interim application filed in the final decree proceedings by the mother of the plaintiff and the defendant to get herself impleaded as the sunplemental 2nd respondent in the final decree application The case of the mother in the application for impleading is that the plaintiff and the defendant are liable to pay maintenance to her and she has got a charge for the same over the family properties which are the subject matter of the suit for partition. The trial court came to the conclusion that the mother's claim for maintenance can also be considered in the final decree proceedings and impleaded her as supplemental 2nd respondent in the application for final decree.

2. Shri U. P. Kunikullaya, learned counsel for the plaintiff-petitioner, contends that after the preliminary decree no third party can be impleaded under 0.1 R.10 of the Code of Civil Procedure. According to the learned counsel, the 2nd respondent is free to file a fresh suit and that is what she should resort to. It is further contended that if the 2nd respondent wanted to get herself impleaded in the partition suit she should have moved the Court before the passing of the preliminary decree, learned counsel then points out that the preliminary decree for partition is 'final decision'. In this connection, reference is made to Venkata Reddy v. Pethi Reddy (AIR. 1963 S C 992). In Para.6 of the above decision the Supreme Court has said:

"A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code A preliminary decree passed. whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive No doubt, in suits which contemplate the making of two decrees - a preliminary decree and a final decree the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the court arrived at the earlier stage also has a finality attached to it S 97, Civil P.C. clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree."

Learned counsel then contends that if parties are added after the passing of the preliminary decree it. would affect the determination in the preliminary decree which has become final. In this connection, reference is made to Baman Chandra v. Balaram (AIR. 1966 Orissa 160) wherein it is said:

"even if other conditions under Or. 1, R.10 (2) are fulfilled, an application for addition of parties cannot be allowed after the preliminary decree is passed except in certain exceptional circumstances, such as, imple