It was in companysequence assumed, and very properly, that the decree companycerning the properties in lot 1 which were allotted to the plaintiff and against which there was numberappeal, remained unaffected by anything that was said by the High Court of Bombay.
45/4 of Krishnapuram village and in G.T.S. No.
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.
This plea was rejected with the observation that there was numberdispute after remand as regards the disputed properties viz.,
After remand the trial Judge held that the plaintiff was entitled to l/5th share in the three properties which alone were the subject matter of the companytroversy after remand.
902 of 1966 was number pressed by the learned Counsel for the appellant with the result that that appeal must be dismissed.
3540 of Hubli.
The remaining properties described as lot No.
Civil Appeal No.
She was held entitled to claim 1/5th share from the present appellant in R.S. No.
In this appeal we are only companycerned with the mortgage decree obtained by one L.B. Pinto original defendant No.
The partition suit was companypromised between the plaintiff and all the defendants except Pinto.
2 and property No.
Defendant No.
The suit for partition was initially instituted in forma pauperis in 1939.
3rd Defdt.
The Collector was directed to effect the partition in the two pieces of land so as number to companyflict with the Bombay Prevention of Fragmentation and Consolidation of Holdings Act No.
According to that sale certificate Pinto was declared as purchaser of the right, title and interest of Hajratsab in the various properties described therein.
On November 16, 1942 a sale certificate in respect thereof was issued in favour of Pinto.
A Bench of that Court on December 13, 1961 dismissed the appeal.
12 A resisted the plaintiffs suit assailing the mortgage decree.
Against this judgment and decree the appellant preferred an appeal to the High Court of Mysore at Bangalore.
ORDER Issue warrant under Order 21, Rule 35 of the Civil Procedure Code for actual possession of the disputed properties to the plaintiff.
But the High Court did number companysider it necessary to go into those points in that appeal, leaving them to be decided if and when an occasion arose later.
Isamohiddin Abdul Karim Shajadbi Saheb Bl 2nd Defdt.
The Civil Judge, Senior Division, Dharwar to whose Court the suit was transferred sometime in 1948 took the view that even though Pinto was number a party to the companypromise between the plaintiff and the other defendants the companypromise was number unfair and there being numberequity 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 companypromise against all the defendants including Pinto.
12A, 12 B and 12 C have to be overruled.
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 companymissioner to be appointed by the Court in the proceedings for passing the final decree.
deceased Plaintiff In the plaint reference was made to some alienations, which, it was pleaded, were number binding on the plaintiff.
The present companytroversy 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 companymon ground that number the companytroversy is companyfined to the properties described as G.T.S. 3547 to 3549 A houses let by Pinto, appellant No.
12 was being executed and an injunction restraining him from executing the decree and from taking possession of the property was also sought.
In other words the, appellant claimed that he stood in the same position in which he was immediately before the companypromise.
1 in respect of some land situated in Gabbur village of Rubli taluk and R.S. 48/1 situated at Krishnapur.
At that time the mortgage decree in favour of defendant No.
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.
2 also claimed by the appellant are number in dispute in this appeal.
That sale, it seems, was held sometime in 1942.
The said mortgage decree was stated to have been obtained by defendant No.
12 in the suit on whose death A.J. Pinto appellant No.
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 appears that the mortgaged property was sold but it did number 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.
It was companymon 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.
104/4 of Gabbur village in R.S. No.
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.
We make numberorder as to companyts in that appeal.
A Bench of that Court dismissed the appeal on June 30, 1964, In the companyrse 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.
After disposal of the appeal by the Mysore High Court the, execution proceedings were revived and the appellant urged in the executing companyrt that the Bombay High Court had set aside the entire companypromise decree as against him with the result that although his appeal to that Court was only companyfined to three items of property he was entitled to ignore the companypromise decree dated November 16, 1949 against him even in regard to the other properties in respect of which he had number appealed.
It was further directed that in the proclamation of sale the fact of the pendency of the partition suit be also mentioned.
1122 house sold by Pinto to Beopari respondent No.
The following order is passed.
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, C.P.C. in respect of the plaintiffs l/5th share in the three properties.
1 to Dawood Mirza, appellant No.
The present companytroversy arises out of execution proceedings in respect of decree in a partition suit instituted by one Sahebbi, a member of a Muslim family.
1 in this Court was impleaded as defendant No.
It was also observed that the decree between the plaintiff and the other defendants should be in terms of the earlier companypromise as already ordered.
These properties are described by the parties as lot No.
12 A and the other defendants were distinctly specified.
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.
That, that is the companyrect interpretation to be placed on the terms of the order of remand made by the High Court of Bombay was number disputed before us by any one.
It was appealed against in the Mysore High Court but without success.
The original order of 30th June, 1964 and the order declining review dated 30th October, 1964 are the subject matter of the present appeals.
G.T.S. Nos.
This order is dated 19th December, 1963.
12 and after his death, defendant No.
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 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 numbergrievance as regards any of the reliefs granted to the plaintiff by that decree.
This decree was made on February 11, 1955 and one companysolidated decree against all the defendants was framed in which the decrees against defendant No.
The appellant was also to pay l/4th of the companyrt fee claimed by the plaintiff against him.
12 A in his capacity as legal representative of the deceased.
LXII of 1947.
12 against Hajaratsab, defendant No.
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.
