- (1.)PETITIONER and opposite party No. 1 are brothers, the former being the elder and opposite party No. 2 is their mother. Opposite party No. 1 filed O. S. No. 51 of 1970 in the Court of the Subordinate Judge, Nayagarh against the petitioner and opposite party No. 2 for partition of 13. 52 acres of land and 3 preliminary decree was passed directing partition of the properties into three equal shares and allotment of one such share to each of the parties. During the final decree proceedings the opposite party No. 1 filed a petition on 5-9-73 praying for a direction to the Commissioner to adjust to the share of the petitioner 1. 97 acres of lands alienated by him to third parties prior to the suit. The petitioner and opposite party No. 2 filed counters contending, inter alia, that the opposite party No. 1 had also transferred 0. 36 acre of lands to one Arakhri Naik prior to the institution of the suit and that those lands should be adjusted to his share. The learned Subordinate Judge on a consideration of the oral and documentary evidence produced by the opposite party No. 1 came to hold thai 0. 50 acre of land out of plot No. 102 under Khata No. 234 and 0. 23 acre of land appertaining to plot No. 730 under khata No. 235 of village Krishnaprasad which were transferred by defendant No. 1 (petitioner) prior to the suit should be adjusted towards his share. He also held that 0. 06 acre of land appertaining to plot No. 1405. 0. 11 acre of land appertaining to plot No. 892 and 0. 19 acre of land appertaining to plot No. 904/1462 i. e. in all, 0. 36 acre transferred by the plaintiff prior to the suit should be adjusted to his share. Accordingly he directed the Commissioner that while effecting the partition he should adjust those properties to the shares of the defendant No. 1 and the plaintiff. Aggrieved by this decision, the petitioner has preferred this Civil Revision.
(2.)IT is urged on behalf of the petitioner that the court below had no jurisdiction to entertain the plaintiff's petition after passing of the preliminary decree, specially when the plaintiff did not make any prayer for such a relief in the plaint. Opposite party No. 1 on the other hand contended that the order sought to be revised is a decree within the meaning of Section 2 of the C. P. Code and it would therefore be appealable as a decree and the Civil Revision is not maintainable.
(3.)THE question that arises for consideration is whether the impugned order is an 'order' within the meaning of Section 2 (14 ). C. P. C. or a 'decree' within the meaning of Section 2 (2 ). C. P. C.