( 1 ) THE petitioner before us is one Dinanath Kumar father of Nishikanta Kumar, opposite party. In 1946 a mortgage suit being mortgage suit No. 46 of 1946 was instituted in the name of Nishikanta. A preliminary decree was passed in that suit on June 30, 1947. In January, 1948 there was a partition suit being partition suit No. 25 of 1948 for partition of ancestral properties. In that partition suit both Dinanath and Nishikanta were parties. That partition suit was decreed on compromise, the compromise petition being dated 25th May, 1949. In paragraph 7 of that compromise petition there was a reference to the preliminary decree which is the subject matter of the present dispute between the parties. According to that provision in the compromise decree the instalment decree that is, the preliminary decree in the mortgage suit "will remain intact in favour Of Dinanath and to that Nishikanta or his heirs would have no claim or concern. " It appears that in July, 1949,dinanaththe petitioner before us,received the first instalment due on the preliminary decree. On 28-7-50 Dinanath filed an application under Order 1, Rule 10, C. P. C. in Mortgage suit No. 46 of 1946 for being ad