The court emphasized that if events and supervening circumstances occur necessitating a change in shares after the passing of the preliminary decree and before the final decree is passed, there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties.

JUDGMENT :

(Prayer: The Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree dated 04.04.1997 made in A.S.No.223 of 1992, on the file of the Principal Subordinate Judges Court, Coimbatore remanding the Judgment and decree dated 09.04.1992 made in I.A.No.321 of 1997 in O.S.No.1860 of 1967 on the file of the III Additional District Munsif Court at Coimbatore.)

1. Even though, three Second Appeals have been put up for consideration before this Court, let me address the issues in S.A.No.19 of 2000 separately.

2. This Second Appeal, emanates from an Interlocutory Order in I.A.No.321 of 1977, which had been filed in O.S.No.1860 of 1967.

3. Questioning the order in I.A.No.321 of 1977, A.S.No.223 of 1992 had been filed and thereafter, the present Second Appeal had been filed.

4. The above narration would raise a doubt whether the Second Appeal should have been filed or a Civil Miscellaneous Second Appeal should have been filed. The office had also raised that particular objection.

5. The learned counsel for the appellants however answered the objection, by placing reliance on a Judgment of a learned Single Judge reported in 1998 (2) CTC 218 [R.Maria Siluvai vs. M/s.B.Sri Kumariammal and three others], wherein the learned Single Judge had examined the provisions under Sections 96 & 100 of CPC and also Order 41 Rule 23 CPC and observed that an appeal is a creature of statute. It had been further stated that the ultimate test was whether there was a final decision on any particular point against the party and if there is one and if he is the losing side, then, that particular order should be treated as an appealable decree and an appeal would lie.

6. Let me go little deeper in to the facts. It must also be noted that at the time of admission, notice of motion alone had been directed in this Second Appeal and it was directed to be listed along with S.A.Nos.1473 & 1474 of 1999.

7. The appellant herein was the 13th respondent in I.A.No.321 of 1977 in O.S.No.1860 of 1967 which was on the file of the III Additional District Munsif Court at Coimbatore. That particular Interlocutory Application had been filed under Order 20 Rule 12 & 18 of CPC and also under Order 26 Rule 13 & 14 of CPC to pass final decree after appointment of an Advocate Commissioner.

8. It had been stated that the 1st petitioner in the said application was the 5th defendant in the suit and the 2nd and 3rd petitioners were 6th and 7th defendants in the suit. The plaintiffs in the suit were the 6th to 11th respondents. The suit was filed by Ayyaswamy Naicker, seeking partition and separate possession. A preliminary decree was passed on 12.12.1969. The 12th respondent had filed I.A.No.306 of 1970 seeking execution. The property was brought on sale. The 1st petitioner had filed a Claim Petition stating that she was entitled to an undivided 1/5th share. It was stated that the sale would not bind the 2nd and 3rd plaintiffs in the suit. It was therefore stated that the petitioners should be granted an undivided 3/5th share in and out of the sale proceeds or in the suit property.

9. The present appellant/13th respondent had alone contested the application. He stated that in accordance with the order of auction by the Court in I.A.No.306 of 1970 in O.S.No.2144 of 1969, he had purchased the property. According to him, the property originally belonged to Ayyaswamy Naicker, and the 1st - 11th respondents were the legal representatives of Ayyaswamy Naicker, and the 7th - 10th respondents, were the children of the 1st respondent. The 6th respondent was the wife of the 1st respondent. The 7th - 10th respondents had filed a suit for partition in O.S.No.1860 of 1967. The present appellant/13th respondent claimed that his purchase will have to be recognized.

10. It had been stated that the respondents had obtained a preliminary decree without notice to the appellant/auction purchaser. He also claimed that he had renovated that particular property. He also