JUDGMENT

Piggott, J. - This was a suit for partition of certain houses. A preliminary decree was passed dismissing a portion of the claim, but declaring the plaintiffs' right to possession by partition of certain specified shares in each of the two houses. This declaration was, however, subject to a condition, vis., that a smaller fractional share in each house, that is to say, a portion of the share declared to belong to the plaintiffs was subject to a charge of Rs. 877 in favour of the defendant, Yakub Husain, and directing that the plaintiffs should pay the same before they could obtain possession. That decree was contested up to Letters Patent Appeal before this Court, and was substantially affirmed. The plaintiffs then presented to the Court of first instance an application to the effect that they had no desire to redeem the fractional shares subject to the charge of Rs. 877 but would be content with actual partition of a smaller share in each house r arrived at by deducting the share Subject to the charge from the share decreed in their favour in the preliminary decree. The learned Subordinate Judge, on receiving this application, proceeded to frame certain issues. He came to