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 19th December, 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 2 were allotted to the plaintiff. It was in consequence assumed, and very properly, that the decree concerning the properties in lot 1 which were allotted to the plaintiff and against which there was no appeal, remained unaffected 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 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.
5. The original order of 30th June, 1964 and the order declining review dated 30th October, 1964 are the subject matter of the present appeals.
6. 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.
7. 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.
8. 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.
9. This appeal accordingly fails and is dismissed with costs.