1. The preliminary and final decree passed by the lower Court seem to me to have been at least irregular in the provision they made respectively regarding profits before and after the beginning of Fasli 1317. The suit was no doubt for partition. But it is not disputed that O. 20, R. 12 applies. Under that rule the profits prior to plaint should be decreed in the decree which gives possession, that is, in a partition suit in the final decree and the profits after it may be the subject of a direction in that decree for an inquiry and of a separate final decreed after its conclusion. The lower Court certainly erred in dealing with the earlier profits in its preliminary decree, though it may have been open to it to deal with the later profits either prior to or after the final decree. Two consequences follow. Firstly no inference in favour of a conclusion that the later profits had been refused should have been drawn by petitioner from the irregular award of the earlier. But secondly, on the view of the Court's procedure most favourable to respondent, as it took one of two alternative courses in awarding the later profits and that not the one indicated by any issue already framed, it should have given petitioner clear notice of its inquiry. This it did not do. For the general notice relied on merely that which the parties had of the proceedings as pending in no way gave warning that the trial of an issue as to these profits was to take place at once and was not to be postponed until a direction for it had been given in the final decree. The failure to give this notice seems to me a material irregularity, which justifies the application of Section 115 of the CPC.
2. It is argued that this Court is asked to revise the lower Court's order rejecting petitioner's application for an amendment of the decree, not the decree itself, and that the remedy of appeal was open to her.
3. But owing to the lower Court's procedure she had no notice that the decree contained or was likely to contain anything she could object to. Her petition no doubt should have been worded and dealt with as for review of the decree, not an amendment. But it contained all the allegations necessary to justify a review and they have been considered by the lower Court.
4. The result is that the lower Court's order is set aside and it is directed to readmit I.A No. 1115 of 1914 and deal with it as a review petition in the light of the foregoing with reference to the allegation that new and important evidence, which petitioner was not disabled from adducing by any fault of her own is now available. Costs in this Court and the lower Court to date will be costs in the cause.
S.N/R.K
5. Petition allowed.