Parties should not be added after a preliminary decree has been passed in a partition suit, as the proceedings subsequent to the preliminary decree are limited in their scope and cannot ignore the preliminary decree.

Gruer, A J C—The Plaintiff non-applicant Motisa brought this suit for partition of joint family property against his two brothers, Nemasa (the present applicant) and Maniksa and Nemasa's son Babu. A preliminary decree was passed and a commissioner was appointed to effect a partition, statements were recorded and his report was submitted Thereafter the Plaintiff applied to have two of the ladies of the family, Shewantibai and Kausalyabai made parties to this suit. The reason is said to be that they are in possession of certain of the joint family property which they claim to be their own. The lower Court allowed them to be added as parties without giving any reason for so doing.

2. I am asked to revise that order on the ground that parties should not have been added after a preliminary decree had been passed; that the ladies are not necessary parties and by adding them the whole case will virtually be reopened. The applicant relics on Raghunath v. Sheolal ( 13 N. L R. 69 ) where it was held that in a mortgage suit it was not competent to a Court to add a fresh party after the preliminary decree had been passed. Order 1, Rule 10, Code of Civil Procedure is said to refer to a stage of the proceedings not concluded by a decree. On the other hand the Defendant non-applicant No. 2 who alone contests the application, refers to Jotindra Mohan Tagore v. Bejoy Chand Mahatap (I. L. R. 32 Cal. 483 ) for the proposition that a suit for partition is pending until the Court signs the final decree. He also relies on Amrut v. Mukand (5 N. L. R. 152) for saying that all parties interested in the dispute should be joined in a partition suit. For a similar reason Annapurna Debya v. Golapmani Debya ( 35 C. L J. 530 ) and Bhuban Mohini Dasi v. Kumudbala Dasi, 1924 AIR(Cal) 467 are quoted. These principles may be conceded, but they do not conclude the matter. In Raghunath v. Sheolal ( 13 N. L. R. 69 ) it was recognised that proceedings subsequent to the preliminary decree are proceedings in the suit, but the learned Judge ( Mittra A. J. C.) went on to say: ''But it does not follow that the proceedings arc not limited in their scope. These proceedings must be proceedings between the parties to the preliminary decree, or their reprsentatives in interests. It is not competent to the Court to ignore the preliminary decree, and try the suit over again by joining a new Defendant, nor can a new Defendant be joined with an existing decree binding upon him, although he was not a party to the proceedings culminating in the decree. Order 1 Rule 10, refers to any stage of the proceedings not concluded by a decree.'' Although that suit was a mortgage one and the present suit is one for partition, the same general principle must apply to both so far as this point is concerned. No doubt these ladies might have been proper parties if they were joined before the preliminary decree was passed. They cannot be joined now as they are not bound by the preliminary decree, nor can the Court ignore it and rip-up the case again to a point anterior to that decree. If the Plaintiff wanted these extra Defendants, he should have moved the Court the proper time. No injustice will be done by not adding them as their ownership of any property, if they refuse to throw it into the family hotch-pot may be decided by separate litigation.

3. I therefore accept this application and set aside the order joining these ladies as Defendants, it being passed without proper jurisdiction. Costs of this application on non-applicant No. 2. Pleader's fee will be Rs 30.

Final Result : Allowed