1. We agree with the conclusion arrived at by Spencer, J. What the appellants sought to do by the Execution Petition No. 46 of 1906 was to re-open entirely the partition effected on the application of the respondents. That was disallowed by the Subordinate Judge and his order was upheld in appeal by the High Court.
2. As a matter of fact, as rightly found both by Sadasiva Aiyar and Spencer, JJ., 3 Acres 72 cents in Survey No. 448 were not divided on the previous occasion and the mere fact that this was mentioned in the grounds of appeal to the High Court, cannot be said to have the effect of implied adjudication debarring the appellants before us, from having a division. The real question before the High Court was, whether the previous partition was liable to be re opened at all, and not as to the particular items of property which had or had not been divided.
3. It would be absolutely going; too far to say that, under these circumstances, the principle of res judicata has any application to the appellants' petition [see Nityananda Gantayet V. Gajapati Vasudera Devu 11 M. L.J. 313.
4. The result will be that the order of the High Court confirming the order of the Subordinate Judge will be set aside and the petition of the appellants will be remitted to the Subordinate Judge for disposal according to law. The respondents will bear the costs of the appellants throughout. The 5th respondent's estate will be liable to recoup to the appellants the sum of Rs. 22, which he has paid into Court.