I.D Dua, J.— These two civil appeals by special leave (Nos. 901 and 902 of 1966) are directed against the judgments and orders of the Mysore High Court at Bangalore dated June 30, 1964 and October 30, 1964 respectively. By means of the judgment and order dated October 30, 1964 the High Court rejected applications for review of its order dated June 30, 1964. Civil Appeal No. 902 of 1966 was not pressed by the learned Counsel for the appellant with the result that that appeal must be dismissed. We make no order as to costs in that appeal.
2. The present controversy arises out of execution proceedings in respect of decree in a partition suit instituted by one Sahebbi, a member of a Muslim family. The suit was instituted by her for partition by metes and bounds and for possession of her share in the property left by her grandfather Mirsab. It would be helpful at this stage to reproduce the pedigree table of the family:
Original ancestor
Mirsab
Hafix Sabeb (deceased)
Hussainsab (deceased)
Hajaratsab (1st Defdt.)
Shajadbi (deceased)
Saheb Bi (Plaintiff)
Isamohiddin (2nd Defdt.)
Abdul Karim (3rd Defdt.)
In the plaint reference was made to some alienations, which, it was pleaded, were not binding on the plaintiff. In this appeal we are only concerned with the mortgage decree obtained by one L.B Pinto (Original Defendant 12 in the suit) on whose death A.J Pinto (Appellant 1 in this Court) was impleaded as Defendant 12-A in his capacity as legal representative of the deceased. The said mortgage decree was stated to have been obtained by Defendant 12 against Hajaratsab, Defendant 1 in respect of some land situated in Gabbur village of Hubli taluk and R. S. 48/1 situated at Krishnapuram. The suit for partition was initially instituted in forma pauperis in 1939. At that time the mortgage decree in favour of Defendant 12 was being executed and an injunction restraining him from executing the decree and from taking possession of the property was also sought. Defendant 12 and after his death., Defendant 12-A resisted the plaintiff's suit assailing the mortgage decree. It appears that the mortgaged property was sold but it did not fetch sufficient funds to satisfy the full claim under the mortgage decree with the result that Pinto secured a personal decree against Hajaratsab and in execution of that decree sought to sell certain properties belonging to the estate of Mirsab. On objection to the sale in execution of the personal decree being raised by the plaintiff, the court made an order that the properties sought to be proceeded against be sold but the sale would be subject to the result of the partition suit. It was further directed that in the proclamation of sale the fact of the pendency of the partition suit be also mentioned. That sale, it seems, was held sometime in 1942. On November 16, 1942 a sale certificate in respect thereof was issued in favour of Pinto. According to that sale certificate Pinto was declared as purchaser of the right, title and interest of Hajratsab in the various properties described therein. The partition suit was compromised between the plaintiff and all the defendants except Pinto. The Civil Judge, Senior Division, Dharwar to whose court the suit was transferred sometime in 1948 took the view that even though Pinto was not a party to the compromise between the plaintiff and the other defendants the compromise was not unfair and there being no equity in favour of Pinto who had purchased the right, title and interest of Hajaratsab in the suit property subject to the result of the suit, a decree should be passed in terms of the compromise against all the defendants including Pinto. An appeal was preferred against this decree by the appellant and a learned Single Judge of the Bombay High Court on July 26, 1954 set aside the decree as against Pinto and remanded the case back to the trial court with the direction that the suit be proceeded with in accordance with law. After remand the trial Judge held that the plaintiff was entitled to 1/5th share in the three properties which alone were the subject-matter of the controversy after remand. She was held entitled to claim 1/5th share from the present appellant in R.S No. 104/4 of Gabbur village in R.S No. 45/4 of Krishnapuram an village and in G.T.S No. 3540 of Hubli. The partition and possession of the two pieces of land were to be effected through the Collector and that of the site in Hubli through a commissioner to be appointed by the Court in the proceedings for passing the final decree. The Collector was directed to effect the partition in the two pieces of land so as not to conflict with the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 62 of 1947. The appellant was to pay the past and future mesne profits from the date of the cause of action mentioned in the plaint till the date of the decree or till the delivery of possession, whichever might be earlier, at the rate to be determined under Order 20 Rule 12, CPC in respect of the plaintiff's 1/5th share in the three properties. The appellant was also to pay 1/4th of the court-fee claimed by the plaintiff against him. It was also observed that the decree between the plaintiff and the other defendants should be in terms of the earlier compromise as already ordered. This decree was made on February 11, 1955 and one consolidated decree against all the defendants was framed in which the decrees against Defendant 12-A and the other defendants were distinctly specified. Against this judgment and decree the appellant preferred an appeal to the High Court of Mysore at Bangalore. A Bench of that Court on December 13, 1961 dismissed the appeal. It appears that an attempt was made there to raise some points in respect of properties other than the three properties which were the subject-matter of the decree appealed from. But the High Court did not consider it necessary to go into those points in that appeal, leaving them to be decided if and when an occasion arose later. The High Court was quite clearly of the opinion that the plaintiff had secured a decree against the appellant in respect of the three properties mentioned in the decree and it was observed that the appellant had no grievance as regards any of the reliefs granted to the plaintiff by that decree. The present controversy arises out of the proceedings in respect of the execution of the decree dated February 11, 1955 affirmed by the Mysore High Court and it is common ground that now the controversy is confined to the properties described as G.T.S 3547 to 3549-A (houses let by Pinto, Appellant 1 to Dawood Mirza, Appellant 2) and Property No. 1122 (house sold by Pinto to Beopari Respondent 2). These properties are described by the parties as Lot No. 1. The remaining properties described as Lot No. 2 also claimed by the appellant are not in dispute in this appeal.
3. After disposal of the appeal by the Mysore High Court the execution proceedings were revived and the appellant urged in the executing Court that the Bombay High Court had set aside the entire compromise decree as against him with the result that although his appeal to that Court was only confined to three items of property he was entitled to ignore the compromise decree dated November 16, 1949 against him even in regard to the other properties in respect of which he had not appealed. In other words the appellant claimed that he stood in the same position in which he was immediately before the compromise. This plea was rejected with the observation “that there was no dispute after remand as regards the disputed properties viz. G.T.S Nos. 1122-B, 3547, 3547-A, 3548-A, 3549 and 3549-A”. That Court expressed its opinion after hearing the argument on behalf of the appellant that “the revised judgment passed on February 11, 1955 covers the disputed properties as well”. The appellant was accordingly held liable to hand over possession to the plaintiff who was entitled to get actual possession. The final conclusions so far as relevant were expressed in these words:
“The plaintiff has already been put in possession of the property on September 23, 1962. In an earlier stage of the present execution proceedings it was ordered that the delivery of possession effected on September 23, 1962 should be struck down and judgment debtor No. 12-A should be restored to the possession of the properties from which he has been dispossessed. However Judgment-debtor No. 12-A has not been restored to the possession of the disputed properties. The plaintiff continued in possession of them. Even so, a warrant for delivery of actual possession of the properties to the plaintiff under Order 21 Rule 35 of the Civil Procedure Code will issue. The plaintiff has recovered money in execution of the warrant already issued. She has, however, credited Rs 302.57 into the court on August 27, 1963. She will be at liberty to withdraw those money from the court. There is, therefore, no need to issue any further warrant in that behalf.
The result, therefore, is the contentions of judgment debtors Nos. 12-A, 12-B and 12-C have to be over-ruled. The following order is passed.
ORDER.
Issue warrant under Order 21, Rule 35 of the Civil Procedure Code for actual possession of the disputed properties to the plaintiff.”
This order is dated December 19, 1963. It was appealed against in the Mysore High Court but without success. A Bench of that Court dismissed the appeal on June 30, 1964. In the course of the judgment it was observed:
“Although the judgment of the High Court of Bombay stated that the decree ‘in so far as it affects Pinto’ was set aside and the suit was remitted to the Civil Judge for being disposed of according to law in the light of the observations made in the judgment of the High Court, when the matter went back to the Civil Judge it was assumed, and in my opinion very rightly, that what was set aside by the High Court of Bombay was only that part of the decree by which the properties in Lot No. 2 were allotted to the plaintiff. It was in consequence assumed, and very properly, that the decree concerning the properties in Lot No. 1 which were allotted to the plaintiff and against which there was no appeal remained uneffected by anything that was said by the High Court of Bombay. That, that is the correct interpretation to be placed on the terms of the order of remand made by the High Court of Bombay was not disputed before us by any one. It was common ground during the arguments before us that the decree of the Civil Judge allotting the properties in Lot No. 1 to the plaintiff remained intact and operative even after the decision of the High Court of Bombay in appeal.”
The Bench, after an exhaustive discussion, also held that there was a merger of the provisions of the decree of 1949 in the decree passed in 1955. The Court said that the Civil Judge had “considered it convenient and appropriate to bring into the decree which he made in the year 1955 the earlier decree which had been made in the year 1949 so that the decree could reflect the combined effect of the first judgment and the revised judgment. I am not prepared to say that what was done by the Civil Judge was not within his competence”. That Court also observed: “Pinto who purchased the properties in the execution sale was clearly bound by the ultimate decision in the suit, and if he was so bound it does not require much persuasion to say that the purchaser from him is equally bound. That is what in my opinion we should say on the basis of the direction made by the Civil Judge and the statement contained in the sale proclamation quite apart from the provisions of Section 52 of the Transfer of Property Act”.
4. The appellant and Dawood Ahmed Mirza tried to seek review of this order but without success. The High Court after going into the merits did not find any error apparent on the face of the record justifying a review and rejected the two applications on October 30, 1964. The original order of June 30, 1964 and the order declining review dated October 30, 1964 are the subject-matter of the present appeals.
5. As already observed, the appeal from the order made on review was not pressed by Shri Bishan Narain. In so far as the other appeal is concerned the main argument addressed by Shri Bishan Narain is that under the Mohammaden law there could be a partial partition and that, therefore, in the partition suit all joint properties need not have been taken into account. The Counsel added that the plaintiff had a decree only in respect of three properties against the appellant and in execution of that decree the appellant could not be dispossessed of the other properties in respect of which there may have been a decree against the other defendants on the basis of compromise in 1949. This argument presupposes that the Bombay High Court had completely set aside the compromise even in regard to the properties other than the three properties which alone were the subject-matter of that appeal. We have not been persuaded to so hold and indeed the subsequent history of the litigation does not support this contention. That being the position the decree in respect of the properties other than the three properties which were the subject-matter of the decree dated February 11, 1955 must be held to be final and binding on the appellant notwithstanding the fact that the decree in respect of those properties was again incorporated in the decree of February 11, 1955 so that the consolidated decree may reflect the combined effect of the final decision of the controversy in the suit. Shri Bishan Narain indeed conceded that once we hold that the order of the Bombay High Court remanding the case to the trial court did not set aside the entire compromise decree and that the decree of 1949 in respect of the other properties became final though its terms were repeated in the decree of February 1955 then he has no case. The question whether under Mohammaden law there can be partial partition does not arise for determination on the view taken by us regarding the scope of the present controversy between the parties. We, therefore, express no opinion on this point.
6. A faint attempt by the appellant's counsel to appeal to us on equitable considerations was met on behalf of the respondent by Shri Tarkunde by the submission that the appellant had taken the properties very cheap at public auction because of the pendency of the litigation and of the mention of this fact in the sale proclamation itself. The auction sale being subject to the result of the litigation the properties would in all probability have been auctioned at a very low price.
7. There is some force in Mr Tarkunde's submission though in view of our conclusion that the earlier decision of 1949 is no longer open to challenge at the instance of the appellant, equitable considerations can hardly have any relevance and are of little avail to him.
8. This appeal accordingly fails and is dismissed with costs.