Das, J.I have considered the matter very carefully and I am of opinion that the learned District Judge had complete jurisdiction to pass the order which we have been asked to revise in these proceedings. The point made before us is, that the learned District Judge has in effect amended the decree of this Court. It is true that the preliminary decree in the partition action was passed by this Court and that this Court remitted the case to the Court below in order to enable that Court to make the distribution according to the directions contained in the decree of this Court. But I cannot regard the order passed by the learned District Judge as an order of amendment of the decree of the High Court. An event occurred after the passing of the preliminary decree, namely, the death of a co-parcener entitled to a share on partition, which it was essentially necessary for the Court to take note of in making the distribution; and the order complained of was an order rendered necessary by an event which occurred sub-sequent to the preliminary decree. Although, ordinarily, the rights of the parties ought to be determined as at the date of the institution of the suit, a suit for partition under the Hindu Law is treated as an exception and, in order to save costs and to prevent multiplicity of proceedings, the Courts are entitled, and even bound to take into consideration matters subsequent to the commencement of such a suit. I am of opinion, therefore, that the order of the learned District Judge cannot be regarded as an order of amendment of the decree, but that it was an order rendered necessary by an event which occurred subsequent to the preliminary decree.

2. It was next argued on behalf of the petitioners that the foundation of allotment is the preliminary decree, and that the only Court which can take note of subsequent events is the Court which passed the preliminary decree. I confess that his argument considerably impressed me at the time when it was advanced, but having considered the matter very fully, I have come to the conclusion that it does not deserve success. Much could be said in favour of the argument if the proceedings in connection with the final decree were proceedings in execution of the preliminary decree or if the shares to be decreed to the parties were those to which they were entitled on the date of the preliminary decree. But in point of law, the partition action does not come to an end with the preliminary decree, but continues till the final decree is made, and it has been held that the shares to be decreed to the parties must be those to which they are entitled on the date of the final decree. If proceedings in connection with the final decree be proceedings in the partition action, then the Court of the District Judge was the only Court which was in seisin of the partition proceedings. The High Court having passed the preliminary decree and remitted the case to the Court of the District Judge, ceased to exercise any dominion over the action; and I cannot think how the application which resulted in the order sought to be revised, which it must be remembered, was an application in the action could possibly have been made to the High Court when the Court of the District Judge was in seisin of the action. In the next place, if the proposition be correct that the shares to be decreed to the parties must be those to which they are entitled on the date of the final decree, then it seems to me that the Court which has to pass the final decree is the only Court which can determine to what shares the parties are finally entitled. My only doubt is whether the order of the learned District Judge is not a decree within the meaning of Section 2(2) of the Code and as such appealable under the Code. But that question does not arise in this application which is an application to set aside the order of the learned District Judge on the ground that he had no jurisdiction to make it. I hold that he had complete jurisdiction to make the order, and must refuse this application with costs. Hearing fee two gold mohurs.

Adami, J.

3. I agree.