Judgment

DUJA, 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:

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 No. 12 in the suit) on whose death A. J. Pinto (appellant No. 1 in this court) was impleaded as defendant No. 12-A in his capacity as legal representative of the deceased. The said mortgage decree was stated to have been obtained by defendant No.12 against Hajaratsab, defendant No. 1 in respect of some land situated in Gabbur village of Rubli taluk and R. S. 48/1 situated at Krishnapur. The suit for partition was initially instituted in forma pauperis in 1939. At that time the mortgage decree in favour of defendant No. 12 was being executed and an injunction restraining him from executing the decree and from taking possession of the property was also sought. Defendant No. 12 and after his death, defendant No. 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 Hajratsab 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 something 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 equiry 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 c