D. P. MOHAPATRA, J.

( 1 ) THE two questions that arise for consideration in this appeal are : (i) whether the trial court had jurisdiction to entertain and deal with the application under O. 40, R. 1, Civil Procedure Code filed by the respondent, and (ii) if the prayer in the application was hit by the principle of res judicata. The first point not having been raised before the trial court has not been answered by him. The second one has been answered in the negative.

( 2 ) THE gist of the relevant facts leading to the present proceeding may be stated thus : the respondent filed Title Suit No. 44 of 1980 in the Court of the Subordinate Judge, Baripada for partition of the suit properties and for allotment of due share to him. The suit was contested by the appellant, mainly on the ground that there was a previous partition of the family properties between the parties and therefore the suit was not maintainable. In the suit a preliminary decree was passed by the trial court awarding to the plaintiff respondent 1/3rd share in the properties in schedules 'e' and 'f' to the plaint. It is stated at the bar that no appeal has been filed against the said preliminary decree, and also no pr