The plaintiff, here respondent, obtained a preliminary decree for partition of joint family properties and, later on, during the pendency of the partition suit, applied in I.A.No.83 of 1947 for an enquiry into the profits of the properties realised by the defendants subsequent to the institution of the suit and a final decree for his share of such profits. The defendants opposed the application on the grounds there was no prayer in the plaint for the recovery of such profits and that the preliminary decree passed in the suit did not direct an enquiry into the same. The Court below held that these objections though well founded in fact were untenable in law and by its order dated 9th July, 1948, posted the case for an enquiry into the merits. This Civil Revision Petition is filed against the order of the Court overruling the objections of the defendants.

In Ghulusam Bibi v. Ahamadsa Rowther1 Ayling and Krishnan, JJ. held that if a preliminary decree in a partition suit either “intentionally or inadvertently” omitted to direct an enquiry into future profits a subsequent application for directing such an enquiry was incompetent and the Court had no power to pass a final decr