The order of the Subordinate Judge is sought to be impugned on the ground that a preliminary decree having been passed by consent in respect of the immovables, and the plaintiff having withdrawn his claim, with regard to the movables, there were no proceedings during a stage of which the Judge could transpose the parties as required by O. 1. R. 10. In my opinion this contention cannot be upheld. The order of the Subordinate Judge says (paragraph 4) “be fore the matter regarding partition of immovables was finally disposed of,” the plaintiff put in his petition for leave to withdraw his claim to the movables. The suit was clearly still going on and that was not one suit for partition of immovables and another for that of movables and it cannot be said that by the withdrawal by the plaintiff of his claim for movables the suit came to an end. It seems to me that the very basis of allowing plaintiff to withdraw was to allow the eighth to tenth defendants to become plaintiffs in his stead, and so to allow the shares of the defendants already ascertained with regard to the immovables to be proceeded with, with regard to the movables. The case in Edulji Muncherji Wacha v. Vullebhoy Khanbhoy(1) seems to support this view; also those in Shivmurteppa v. Virappa(2) and Tirumedi Adeyya v. Cheluhuin Venkatregadu(3).
The order of the Subordinate Judge was right and the Civil Revision Petition must be dismissed with costs. (2 sets).
K. V. S.Petition dismissed.