Driving petitioners to a separate suit would lead to grave miscarriage of justice.

The petitioners are the defendants 4 & 6 to 11 in the suit for partition filed by the 1st respondent herein namely O.S.No.203/98 before the Additional Subordinate Judge, Thiruvannamalai. The suit was dismissed. Against that, an appeal was filed before this Court in A.S.No.256/81. That was also dismissed. Against that, L.P.A.No.129/2002 and S.A.No.796/83 were filed and they were disposed of by the Division Bench of this Court granting a decree for partition of 8/21 share for items 12 and 13 and 1/7th share in items 1 to 11.

2. The properties in respect of which the dispute arose belongs to one Appadurai who had two wives. The plaintiff and defendants 4, 5 and 6 were children through the first wife. The second wife was the first defendant and defendants 2 and 3 were her son and daughter respectively. The defendants 7 to 11 were the tenants. The defendants 1 and 2 claimed that they were beneficiaries under the Will executed by the late Appadurai. The Division Bench rejected the Will. The plaintiff who is the first respondent herein claimed that the properties were joint family property and therefore he was entitled to a larger share. This was also rejected by the Division Bench holding that the properties were self acquired properties. This finding has become final. Therefore, as the legal heirs of Appadurai, we have the plaintiff and the defendants 1 to 6 above, totally seven persons . The Division Bench declared the share of the plaintiff as being 1/7th share.

3. It is relevant to note that though the written was filed by the defendant 1 & 2 separately and 4th defendant separately, the 6th defendant remained exparte. The defendants 4 and 5 admitted the claim of the plaintiff and also claimed that they had share in the property. This civil revision petition arises out of the application filed by the 4th defendant, who is the first petitioner, and on behalf of the other petitioners. He had filed this application for amendment of the preliminary decree declaring their rights in the suit property along the lines mentioned in the affidavit which referred to the judgment in the L.P.A. This was resisted by the respondent herein on the ground that the parties who had remained exparte and who had not challenged the dismissal of the suit were not entitled to take advantage of the preliminary decree granted by the Division Bench and that their remedy if any, is to file a fresh suit.

4. The submissions made by the respondent found favour with the Court below who also dismissed the application holding that the only remedy open to the petitioners was to file a separate suit.

5. Learned counsel for the petitioners submitted that until a final decree is passed, the partition suit cannot be said to have attained finality. If the defendants did not contest the suit, it is only because they have accepted the share claimed by the plaintiff and were willing to have their shares in accordance with the same. Learned counsel submitted it would not be in the interest of justice to drive the petitioners to a separate suit, in fact it has been held in several decisions that the only remedy for such defence is to seek a modification of the preliminary decree that has already been passed and the decisions are A.I.R. 1966 Allahabad 601l; 1972 M.L.J. 12; A.I.R.1981 Madras 307; 200(3) L.W 599 and A.I.R. 1990 Andra Pradesh 263.

6. Learned counsel for the respondents on the other hand would submit that not having contested the suit the defendant cannot now seek to include himself into the decree and get the relief to which he or she is not entitled to. According to the learned counsel, the Court below has rightly dismissed the application and it warranted no interference. Reliance was placed on the judgment of the Division Bench of Calcutta High Court reported in A.I.R.1977 Calcutta 288, Sarbeswar V. Bibhabasu.

7. In A.I.R. 1966 Allahabad 601, Bittan Devi & Others V. Rudra Sen Bajpai & Others, the Court explained the words "declaring the right of the seve