S. BARMAN, J.

( 1 ) THE question, -- whether a final decree, in a partition suit, against dead persons (who Were defendants in the suit) is a nullity, --is the main point involved in this Misc. Appeal filed by the defendant, against an order of the learned Subordinate Judge, Cuttack, whereby he dismissed the defendant's petition, under Order 9, Rule 13 Civil Procedure Code, for setting aside the final decree passed in the partition suit.

( 2 ) THE facts are few and simple. On August 10, 1949 a preliminary decree for partition was passed in the suit. On April 24, 1950 an application tor final decree in the partition suit was filed. Thereafter some defendants died, -defendant No. 4 died on November 18, 1950 and defendant No. 1 on August 26, 1954. On December 15, 1954 a final decree was passed in the said Partition suit, without bringing on record the legal representatives of the said two deceased defendants. On October 18, 1957 the defendant (appellant herein) made an application, under Order 9, Rule 13 Civil Procedure Code, for setting aside the said final decree passed in the partition suit. The trial Court dismissed the said application and accordingly the final decree was allow