V.N. Khare, J.@mdashThis is an application in revision against the order dated 2411986 passed by Sri R.S. Verma, Civil Judge, Deoria, in Misc. Case No. 110 of 1986, Murali and others v. Haribansh and others, in proceedings for preparation of final decree arising out of the decree passed in a partition suit (no. 38 of 1971).
2. Respondent nos. 1 and 2 filed partition suit no. 38 of 1971 in the Court of Civil Judge, Deoria. The suit was decreed on 1951980. After the passing of the preliminary decree, proceedings for final decree are going on. During the pendency of the aforesaid proceedings, one of the defendants, namely, Tilak Prasad, died, and an application was moved to bring on record his heirs and legal representatives. Two other applications were also moved by applicant nos. 1 and 2 praying for abatement of the proceedings. The application for substitution as well as the application for abatement were rejected, and that is how the applicants have come up before this Court in revision.
3. Learned counsel for the applicants urged that since one of the respondents died and the substitution application was rejected, the proceedings for preparation of final decree abated. In support of his contention, he relied upon a Full Bench decision of this Court reported in AIR 1931 Alld. 490, Mahabir Singh v. Narain Tewari. The argument has no merit. Rule; 12 of Order XXII, Code of Civil Procedure reads as follows:
�12. Application of order to proceedings. Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.�
Allahabad High Court has made amendment by adding the following words at the end of this Rule :
�or to proceeding in the original court taken after passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit.�
This suit is admittedly for partition, and as such requires the passing of a final decree. By virtue of the Local amendment, once a preliminary decree has been passed, the proceedings for the preparation of final decree would not abate even if death of a party occurs and no substitution would be necessary, and the proceedings may go on. No doubt, a Full Bench of this Court held that a suit continues till the final decree is passed and it can abate till; that contingency happens, and it can abate after the passing of the preliminary decree. But in view of the local amendment made in Rule 12 of Order XXII, Code of Civil Procedure, the view taken by the Full Bench of this Court has lost the force, and it is no longer a good law. Since the suit would not abate, consequently the proceedings for preparation of the final decree would also not abate due to death of a party, and the trial court would be free to prepare the final decree for partition.
4. In view of the above, there it no merit in the revision. It is accordingly dismissed with costs.
(Revision dismissed)
