In this petition, the petitioners allege that subsequent to the disposal of Appeal Suit No. 563 of 1956, by this Court, the parties have compromised the matter and they pray for the passing of a revised preliminary decree in terms of the compromise arrived ,at by them.

The prior facts, which will be necessary for a disposal of this petition, can be briefly put down. Petitioners 1 and 2, Subramania Iyer and Venkataramana Iyer and the husband 6f the respondent Thangammal were brothers. The respondent’s husband died on 22nd July, 1952, without issue. On the allegation that one of the brothers Venkataramana Iyer was a congenitally deaf and dumb person, it was averred by Thangammal the plaintiff in the suit for partition out of which the appeal arose, that he would be disentitled to get any share. On this allegation the respondent Thangammal claimed partition and separate possession of one half-share. The suit was dismissed. She filed an appeal which came up before a Bench of this Court comprising of Balakrishna Ayyar and Jagadisan, JJ. (Appeal Suit No. 563 of 1956). This Court held that the second petitioner Venkataramana Iyer would be entitled to a share and decreed the suit for partition and separate possession of l/3rd share in favour of the plaintiff. There was petition for leave to appeal to the Supreme Court filed by the defendants in the suit. It was contested by the plaintiff. A report was called for from the Subordinate Judge, Salem, regarding valuation. The learned Subordinate Judge sent a report on 6th September, 1961, stating that the parties had compromised the matter. On 27th October, 1961, a Bench of this Court, to which one of us was a party, referred to the report of the learned Subordinate Judge that since the parties had compromised, it was not necessary to lead evidence regarding the value of the properties, for the purpose of granting leave to appeal to the Supreme Court, and thereupon dismissed the petition for leave to appeal to the Supreme Court. Thereafter, the present petition has been filed for passing a revised preliminary decree in terms of the compromise, by the petitioners, who are the defendants in the suit and respondents in the appeal.

In the counter-affidavit to this application filed by the respondent-plaintiff two contentions were put forward. The first one was that the compromise was obtained by deceit and false representation and would not bind the respondent. The petition was also opposed on a second ground which is a legal one. It was alleged that this Court in the appeal above mentioned has passed a preliminary decree and thereafter it was not open to the parties to apply to the Court to set aside the decree and substitute another preliminary decree in its place. This Court, so far as the preliminary decree is concerned, is functus officio and there is no proceeding before it. Even the consent of the parties would not give it jurisdiction to revise the preliminary decree already passed.

In regard to the last-mentioned plea, there is ample authority for the view that a partition action comes to an end, only when the final decree is passed, and until then, the partition action has to be deemed as pending. A Bench of the Calcutta High Court in Jotindra Mohan Tagore v. Bejoy Chand Mahatap1, held that a suit for partition even when the report of the Commissioners is confirmed and a decree is directed to be drawn in accordance there with, is a pending litigation until the Court signs the final decree. A Full Bench of this Court in Basavayya v. Guravayya2, after referring to various authorities, observed at page 185 of the report:

“ A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of the parties have to be adjusted as on the date of the final decree..........In such a suit the Court has not only to divide the common properties but has also to adjust the equities arising, between the parties out of their relation to the common pro