JUDGEMENT S.N.Hussain, J. 1. The first case is Civil Revision No. 1520 of 1997 which is filed by Smt. Savitri Devi one of the sisters of Arun Prakash Pandey, against order dated 30.7.1997 by which the learned Subordinate Judge-VI, Motihari (East Champaran) allowed the application of intervenor Ram Chandra Singh and held that the preliminary decree dated 19.7.1978 passed in Partition Suit No. 17 of 1976 was collusive and fraudulent and accordingly dropped the proceeding of final decree in Partition Suit bearing P.D. No. 17 of 1976. The said civil revision was earlier allowed by a Bench of this court vide order dated 10.12.1991 setting aside the impugned order of the trial court. The intervenor Ram Chandra Singh challenged the said order of this court in S.L.P. (Civil) 6535 of 1999 (Civil Appeal No. 8216 of 2003) which was allowed by the Honble Apex Court by a common order dated 9.10.2003 setting aside the aforesaid order passed by the High Court and remitting it for fresh consideration in accordance with the observations made in the said order. 2. The second case is Civil Review No. 245 of 1998 which is filed by Ram Chandra Singh (not a party in the First Appeal No. 450 of 1981) for review of order dated 22.5.1998 by which a Bench of this court dismissed the said F.A.No. 450 of 1981 with modification on the basis of compromise between the appellants Arun Prakash Pandey and others and the respondents State Bank of India and others with respect to the impugned judgment and decree dated 22.6.1981 of the trial court, namely 5th Additional Subordinate Judge, East Champaran, decreeing Mortgage Suit No. 88 of 1977 (9/1980) filed by the State Bank of India for a preliminary decree under Order XXXIV Rule 4 of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity). The said Civil Review No. 245 of 1998 was earlier dismissed by a Bench of this court vide order dated 10.5.1999 which was challenged by Ram Chandra Singh in S.L.P.(Civil) No. 20273 of 2000 (Civil Appeal No. 8217 of 2003) which was allowed by the Honble Apex Court by a common order dated 9.10.2003 setting aside the aforesaid order passed by the High Court and remitting it for fresh consideration in accordance with the observations made in the said order. 3. 3. In view of the specific order of the Honble Apex Court dated 9.10.2003, which is reported in 2003(4) PLJR (SC)208, by which earlier orders passed in both the cases, namely C.R. No. 1520 of 1997 and Civil Review No. 245 of 1998, were set aside directing this court to consider them afresh in the light of observations made by the Honble Apex Court which were common to both the cases, the said two cases have been heard together by this court and are being disposed of by this common judgment. 4. The aforesaid Mortgage Suit No. 88 of 1977 was filed by State Bank of India against Arun Prakash Pandey and other members of his family for a preliminary decree of Rs. 1,15,312.32 pasie and interest pendente lite and future besides the cost of the suit etc. under the provision of Order XXXIV Rule 4 of the Code on the basis of a registered mortgage bond dated 17.6.1970 executed by defendant nos. 1 and 2, namely Arun Prakash Pandey and his wife in favour of the plaintiff-Bank. In the said suit, defendants no. 3 to 6 were the children of defendant nos. 1 and 2, whereas defendants no. 7 and 8 were the guarantors of the said loan and defendants no. 10 to 12 were the sisters of defendant no. 1 who intervened in the suit later. Defendants No. 1 and 2 contested the said suit and their children defendants no. 3 to 6 adopted the pleadings of their parents, whereas defendants no. 10 to 12 filed a separate written statement, but it was substantially the same claiming to have six annas share jointly in the mortgaged property. 5. In view of the pleadings of the respective parties, the learned trial court formulated the following issues: (i) Whether the suit as framed is maintainable? (ii) Whether the plaintiff has got valid cause of action or right to sue? (iii) Whether defendants 10 to 12 were members of a Joint Hindu Family in the year 1970, of which defendant no. 1 was the karta? (iv) Whether the plaintiff is entitled to a decree of mortgage amount as claimed? (v) Whether the plaintiff is entitled to any other relief? 6. (iii) Whether defendants 10 to 12 were members of a Joint Hindu Family in the year 1970, of which defendant no. 1 was the karta? (iv) Whether the plaintiff is entitled to a decree of mortgage amount as claimed? (v) Whether the plaintiff is entitled to any other relief? 6. On the aforesaid issues, evidence were led and arguments were made on behalf of the parties concerned, whereafter the learned 5th Additional Subordinate Judge, East Champaran, decreed the suit on contest with cost vide his judgment and decree dated 22.6.1981 after arriving at the following findings: (a) The plaintiff (State Bank of India) has fully proved his case of mortgage against the defendants regarding the claimed amount due against them. (b) The mortgage in question does not affect the interest of defendants no. 10 to 12 (sisters of defendant no. 1) in the mortgaged properties. (c) The plaintiff has got a cause of action to bring the suit as he is entitled to recover the claimed amount from defendants no. 1 to 9. 7. Against the aforesaid judgment and decree of the trial court, defendants no. 1 to 6, namely, Arun Prakash Pandey and the members of his family filed F.A. No. 450 of 1981 in which his sisters as well as the State Bank of India were impleaded as respondents. The said first appeal remained pending till 1998. 8. In the meantime, after the preparation of the aforesaid preliminary decree dated 22.6.1981 in Mortgage Suit No. 88 of 1977, final decree was also prepared by the trial court on 4.8.1982 at the instance of the plaintiff-State Bank of India. Thereafter Execution Case No. 65 of 1987 for recovery of the decretal amount was also filed by the plaintiff-decree holder. However, since defendants no. 1 to 9-judgment debtors failed to deposit the decretal amount, thirty acres of land out of the total suit land measuring about 95 acres of land were auction sold by the executing court on 7.6.1988 and it was auction purchased by Ram Chandra Singh (review petitioner), who was not a party either in the suit or in the execution case, for Rs. 1,61,698.53 paise through the court, whereafter he deposited the said amount in the executing court on 8.6.1988. 9. Immediately thereafter on 7.7.1988, defendants nos. 10 to 12, the sisters of defendant no. 1,61,698.53 paise through the court, whereafter he deposited the said amount in the executing court on 8.6.1988. 9. Immediately thereafter on 7.7.1988, defendants nos. 10 to 12, the sisters of defendant no. 1 filed Miscellaneous Case No. 11 of 1988 in Execution Case No. 65 of 1987, claiming a share in the suit property as per an earlier decree of partition dated 19.7.1978 in Partition Suit No. 17 of 1976 filed by Savitri Devi claiming 2 annas share against her brother Arun Prakash Pandey and her two sisters. An application was filed in the said Miscellaneous Case by defendant nos. 10 to 12 for stay of confirmation of sale till the disposal of the said miscellaneous case. However, the said application for stay was dismissed by the executing court on 26.7.1988 and the auction sale was confirmed. Subsequently vide order dated 22.8.1988, the executing court permitted the plaintiff-decree holder, namely, the State Bank of India to withdraw the amount deposited by the purchaser Ram Chandra Singh. 10. Against the aforesaid interim order dated 26.7.1988, defendants nos. 10 to 12, namely the sisters of defendant no. 1 filed Civil Revision No. 1555 of 1988 which was admitted by a Bench of this court and delivery of possession in the execution case was stayed vide order dated 25.8.1988, but subsequently the said civil revision was dismissed by this court vide order dated 30.10.1990 as the auction sale had already been confirmed by the executing court. 11. In the meantime, the learned executing court finally dismissed Miscellaneous Case No. 11 of 1988 itself on merits vide order dated 27.8.1988. Against the said order, defendants nos. 10 to 12 filed Civil Revision No. 1700 of 1990, but during the pendency of the said civil revision, the executing court signed the sale certificate and issued a writ of delivery of possession on 10.12.1990, whereafter delivery of possession with respect to his purchased land was effected on 11.12.1990 by the executing court in favour of the purchaser Ram Chandra Singh (review petitioner). 12. The aforesaid Civil Revision No. 1700 of 1990 filed by defendants nos. 12. The aforesaid Civil Revision No. 1700 of 1990 filed by defendants nos. 10 to 12 was allowed by a Bench of this court vide order dated 21.5.1992 after finding that merely on the basis of preliminary decree of partition dated 19.7.1978 passed in Partition Suit No. 17 of 1976 there was no actual partition of suit land by metes and bounds between Arun Prakash Pandey and his sisters, who had six annas share jointly and without actual partition by metes and bounds by takhtabandi and final decree, no part of the property can be said to be exclusively belonging to Arun Prakash Pandey and furthermore since the total land of the family was more than 95 acres the land involved in the mortgage suit measuring 30 acres was well within the share of Arun Prakash Pandey, but even assuming that the auction sale by the executing court will be valid to the extent of the share of Arun Prakash Pandey, the auction purchaser cannot be put in possession over his auction purchased land and his only remedy was either to seek a partition for carving out a separate area from the share of Arun Prakash Pandey or to file an application in the final decree proceeding of the partition suit for including the area purchased by him in the Takhta of Arun Prakash Pandey. It was also found that the learned executing court had wrongly dismissed Miscellaneous Case No. 11 of 1988 filed by defendants nos. 10 to 12 on the ground that the purchased area of land was less than the share of Arun Prakash Pandey which was neither correct on facts, nor such ground was permissible for dismissal of the case. It was also found that the learned executing court was not justified in putting the specific area of land on auction sale treating it to be in the exclusive share of Arun Prakash Pandey. Accordingly, the auction sale and the subsequent proceeding including the proceeding of delivery of possession were set aside. 13. Against the aforesaid order of the High Court dated 21.5.1992, passed in C.R. No. 1700 of 1990 the State Bank of India filed SLP No. 10800 of 1992 which was dismissed on merits by the Honble Supreme Court vide its order dated 29.3.1993. 13. Against the aforesaid order of the High Court dated 21.5.1992, passed in C.R. No. 1700 of 1990 the State Bank of India filed SLP No. 10800 of 1992 which was dismissed on merits by the Honble Supreme Court vide its order dated 29.3.1993. The auction purchaser, namely, Ram Chandra Singh also challenged the aforesaid order of this court dated 21.5.1992 vide SLP No. 8119 of 1992 which was disposed of as withdrawn by the Honble Supreme Court vide its order dated 25.6.1992 as follows: "Learned counsel for the petitioner withdraws this petition to cash upon the order impugned against. Special Leave Petition is disposed of as withdrawn." 14. In the said circumstances, it is quite apparent that this court vide its order dated 21.5.1992 passed in Civil Revision No. 1700 of 1990 set aside the auction sale and the subsequent proceeding, including delivery of possession passed in Execution Case No. 65 of 1987 and the said order of this court was twice affirmed by the Honble Apex Court in two SLPs, one filed by the plaintiff-State Bank of India and the other filed by the auction purchaser Ram Chandra Singh which were both dismissed by the Honble Apex Court. In the said circumstances, the only option left for the auction purchaser, namely Ram Chandra Singh to follow the directions given by this court in the said order by way of seeking a partition by filing a separate suit for carving out a separate area from the share of Arun Prakash Pandey or by filing an application in the final decree proceeding of Partition Suit No. 17 of 1976 for including the area purchased by him in the Takhta of Arun Prakash Pandey, but the said auction purchaser did not take any such step as mentioned above. 15. However, after about two years of the order of the Honble Apex Court dated 25.6.1992 the said Ram Chandra Singh filed a separate Title Suit No. 4 of 1994 for setting aside the preliminary decree dated 19.7.1978 passed in Partition Suit No. 17 of 1976 filed by Smt. Savitri Devi against her sole brother defendant no.1, his sons and her two sisters. The ground taken by the auction purchaser was that there was suppression of fact regarding the date of death of their father Ugam Pandey as the sisters of Arun Prakash Pandey claimed in the suit that their father Ugam Pandey had died after 1956, whereas according to the auction purchaser Ram Chandra Singh he had died in the year 1944 and hence the said sisters did not inherit any share in his property. In the said title suit, the auction purchaser also sought declaration that order of the High Court dated 21.5.1992 was obtained by fraud. In the said title suit, an application for injunction was filed by Ram Chandra Singh which was rejected by the trial court vide order dated 19.4.1994 which was challenged by him in M.A. No. 190 of 1994 which was dismissed by a Bench of this court vide order dated 14.11.1994, reported in 1995(1) PLJR 298. Ultimately the said Title Suit No. 4 of 1994 filed by Ram Chandra Singh was dismissed for default on 24.5.2006, but no step was taken by the said Ram Chandra Singh against it before any court or forum. 16. During the pendency of his Title Suit No. 4 of 1994 the aforesaid Ram Chandra Singh (auction purchaser) filed an application dated 6.5.1995 under Order XXVI Rules 13 and 14(2) read with Order XX Rule 18 of the Code in the final decree proceeding of Partition Suit No. 17 of 1976 for declaring that preliminary decree passed in the said suit was fraudulent, collusive and nullity due to the suppression of the fact of death of Ugam Pandey. in 1944, i.e. much before 1956 and hence the sister Savitri Devi who was plaintiff in Partition Suit No. 17 of 1976 and her two sisters, who were defendants, having no share in the property left by Ugam Singh, the final decree proceeding should also be dropped. 17. In the said matter, the auction purchaser Ram Chandra Singh produced several sale deeds of 1944, 1947, 1949, 1950, 1951, 1953, 1954 and 1955 executed by or in favour of Arun Prakash Pandey showing his father Ugam Pandey as dead. 17. In the said matter, the auction purchaser Ram Chandra Singh produced several sale deeds of 1944, 1947, 1949, 1950, 1951, 1953, 1954 and 1955 executed by or in favour of Arun Prakash Pandey showing his father Ugam Pandey as dead. Finally the learned trial court vide its order dated 30.7.1997 allowed the application of Ram Chandra Singh holding that Ugam Pandey died in the year 1944 much before coming into force of the Hindu Succession Act, 1956 and hence his daughters, who were married, did not inherit anything out of his property which devolved upon his only son Arun Prakash Pandey. It was also held that due to the suppression of the aforesaid fact, preliminary decree of partition was passed in Partition Suit No. 17 of 1976 declaring six annas share of the three daughters of Ugam Pandey and only ten annas share of his son Arun Prakash Pandey. Thus, preliminary decree dated 19.7.1978 passed in Partition Suit No. 17 of 1976 was declared collusive and fraudulent and accordingly final decree proceeding was dropped. 18. Against the aforesaid order of the trial court dated 30.7.1997, Smt. Savitri Devi, one of the sisters of Arun Prakash Pandey, filed Civil Revision No. 1520 of 1997 in which the auction purchaser Ram Chandra Singh was impleaded as opposite party no. 9. The said civil revision was allowed by a Bench of this court vide order dated 10.12.1998 on the ground that the provision of Order XX Rule 18 or the provision of Order XXVI Rules 13 and 14(2) of the Code was not applicable for setting aside a preliminary decree or for dropping the proceeding of a final decree and the court before whom the final decree proceeding was pending had no authority to set aside the preliminary decree under the said provision on the ground of fraud or misrepresentation. 19. Against the said order of this court dated 10.12.1998, the auction purchaser Ram Chandra Singh filed SLP(C) No. 6535 of 1999 (Civil Appeal No. 8216 of 2003) which was allowed by the Honble Apex Court vide order dated 9.10.2003 setting aside the impugned order dated 10.12.1998 passed by the High Court and remitting the matter to this court for considering it afresh in accordance with the observations made by the Honble Supreme Court. In these circumstances, Civil Revision No. 1520 of 1997 has been placed before this court for fresh consideration. In these circumstances, Civil Revision No. 1520 of 1997 has been placed before this court for fresh consideration. 20. During the pendency of the civil revision, First Appeal No. 450 of 1981 which was filed by Arun Prakash Pandey against the preliminary decree dated 22.6.1981 decreeing Mortgage Suit No. 88 of 1977 (filed by the State Bank of India) was dismissed by this court vide order dated 22.5.1998 with modification in the trial court judgment and decree as per the compromise between the defendants-appellants, namely Arun Prakash Pandey and others and the plaintiff-respondent, namely, State Bank of India, according to which appellants Arun Prakash Pandey and others were ready to pay the amount due under the decree to the respondent State Bank of India in two equal instalments by 31.7.1998 and 31.1.1999 by which the State Bank of India had no objection in making the said payment in two equal instalments. Hence, the said decree of the trial court was modified to the extent of instalments only. 21. The auction purchaser Ram Chandra Singh, who was neither a party to Mortgage Suit No. 88 of 1977, nor was a party to F.A. No. 450 of 1981, filed Civil Review No. 245 of 1998 challenging the order of dismissal of F.A. No. 450 of 1981 dated 22.5.1998. The said civil review was dismissed by a Bench of this court vide order dated 10.5.1999 holding that the auction sale having itself been set aside by this court vide order dated 21.5.1992 passed in Civil Revision No. 1700 of 1990 the said Ram Chandra Singh had no occasion to file the review case nor there was any merit in his petition. 22. The said order of this court dated 10.5.1999 passed in Civil Review No. 245 of 1998 was challenged by the aforesaid auction purchaser Ram Chandra Singh in SLP(C) No. 20273 of 2000 (Civil Appeal No. 8217 of 2003) which was allowed by the Honble Apex Court vide order dated 9.10.2003 setting aside the impugned order dated 10.5.1999 passed by this court and remitting the matter to this court for considering it afresh in accordance with the observations made by the Honble Supreme Court. In these circumstances, Civil Review No. 245 of 1998 has been placed before this court for fresh consideration. 23. In these circumstances, Civil Review No. 245 of 1998 has been placed before this court for fresh consideration. 23. Both the aforesaid cases bearing Civil Appeal No. 8216 of 2003 as well as Civil Appeal No. 8217 of 2003 were heard together and were decided by the Honble Supreme Court vide common order dated 9.10.2003, which is reported in 2003(4) P.L.J.R. (S.C.)208. The main points on which the matters were remitted and the civil appeals were allowed by the Honble Apex Court setting aside the order of this court dated 10.12.1998 passed in C.R. No. 1520 of 1997 as well as the order dated 10.5.1999 passed in Civil Review No. 245 of 1998 are as follows: "(i) The High Court, in our opinion, committed a serious error in referring to the earlier orders passed by it so as to shut the door of justice on the face of appellant for all time to come. We are of the opinion that the impugned judgment dated 10.12.1998 in Civil Revision No. 1520 of 1997 cannot be sustained." "(ii) So far as the order dated 10.5.1999 passed in Civil Review No. 245 of 1998 is concerned, suffice it to say that the High Court should have considered the question as to whether the right of the auction purchaser could have been set at naught by reason of a consent order passed in his absence. The appellant was not a party in the First Appeal. He was also not a party to the compromise." "(iii) The consent order, as is well-known, is an agreement between the parties with the seal of the Court superadded to it. The appellant herein in the Review Application categorically stated that the parties to the appeal had suppressed the auction sale as also the confirmation thereof. The effect of the events appearing subsequent to the filing of the First Appeal resulting in creation of a third party right was bound to be taken into consideration by the High Court. A third party right cannot be set at naught by consent. The High Court, therefore, was required to consider the contention of the appellant in their proper perspective. The High Court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order. {In this regard a decision of the Honble Apex Court in case of Dwarka Prasad Agarwal (D) LRs. The High Court, therefore, was required to consider the contention of the appellant in their proper perspective. The High Court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order. {In this regard a decision of the Honble Apex Court in case of Dwarka Prasad Agarwal (D) LRs. and Another V/s. B.D. Agarwal and Others [ (2003)6 SCC 230 ] has been referred.}" "(iv) It is true that pursuant to or in furtherance of the consent order, the respondents had deposited the amount and the State Government has appropriated the same. The legal issues as regard the effect of commission of fraud on court vis-a-vis the conduct of the parties are still at large. The High Court was, therefore, required to adjust the equities between the parties. The Bank cannot also unjustly enrich itself in so far as; while enforcing a preliminary decree of mortgage, it cannot take also recourse to recover the decretal amount from the judgment-debtors at the expense of the auction purchaser." "(v) In such an event also, the court may have to find out a remedy which would be just and equitable." "(vi) The High Court furthermore failed to notice the principle actus curiae neminem gravabit. {In this regard a decision of the Honble Apex Court in case of Rajesh D. Darbar & Others V/s. Narasingrao Krishnaji Kulkarni & Ors. [JT 2003(7) Supreme Court 209] may be referred.}" "(vii) For the reasons aforementioned, we are of the opinion that the impugned judgments cannot be sustained which are set aside accordingly. The matters may now be considered afresh by the High Court in the light of the observations made hereinbefore. These appeals are allowed. No costs." 24. In the aforesaid circumstances, both the cases mentioned above have to be considered afresh in the light of the abovementioned observations/directions of the Honble Apex Court relying upon two earlier decisions of that court, namely, the one reported in JT 2003(7) Supreme Court 209 regarding the principle of actus curiae neminem gravabit and the other reported in (2003)6 SCC 230 regarding the effect of compromise between members of Joint Hindu Family on a third party, namely the transferee/settlee of one of such members. Now this court is obligated to address itself on the following points for the purpose of reviewing its aforementioned orders: (a) The High Court should not refer to the earlier orders passed by the High Court so as to shut the door of justice on the face of Ram Chandra Singh for all time to come, especially when order dated 10.12.1998 passed in C.R. No. 1520 of 1997 cannot be sustained. (b) The High Court should consider the point as to whether the right of auction purchaser could have been set at naught by reason of a consent order passed in his absence especially when the said auction nor was a party to the compromise. In this connection reference is made to a decision of the Honble Apex Court in case of Dwarka Prasad Agarwal (D) LRs. and Another V/s. B.D. Agarwal and Others, reported in (2003)6 SCC 230 . (c) The High Court was bound to take into consideration the effect of the events appearing subsequent to the filing of the first appeal resulting in creation of a third party right which cannot be set at naught by consent of the parties to the appeal without considering the contention of the auction purchaser Ram Chandra Singh. (d) The effect and justification of suppression of the auction sale and confirmation thereof by the parties to the first appeal entering into compromise. (e) The High Court must consider the effect of commission of fraud on court vis-a-vis the conduct of the parties. (f) The High Court is required to adjust the equities between the parties and will have to find out a remedy which would be just and equitable. (g) The High Court must notice the principle of actus curiae neminem gravabit, considering the decision of the Honble Apex Court in case of Rajesh D. Darbar & Others V/s. Narasingrao Krishnaji Kulkarni & Ors., reported in JT 2003(7) Supreme Court 209. (h) The High Court must also see whether the Bank is unjustly enriching itself in so far as by enforcing a preliminary decree of mortgage it cannot take also recourse to recover the decretal amount at the expense of the auction purchaser. 25. So far point no. (h) The High Court must also see whether the Bank is unjustly enriching itself in so far as by enforcing a preliminary decree of mortgage it cannot take also recourse to recover the decretal amount at the expense of the auction purchaser. 25. So far point no. (a) is concerned, the Honble Apex Court has specifically held in its aforesaid order dated 9.12.2003 that the judgment passed by this court on 10.12.1998 in Civil Revision No. 1520 of 1997 cannot be sustained. Hence, the said order of this court stands nullified and there is no question of referring the same on any point involved in the instant case. By the said judgment of this court Civil Revision No. 1520 of 1997 was allowed merely on technical ground that the provision of Order XX Rule 18 or the provision of Order XXVI Rules 13 and 14(2) of the Code under which the application was filed was not applicable for setting aside a preliminary decree or dropping the proceeding of final decree. Thus, now those technicalities are not to be seen and the matter has to be decided on merits as per the directions of the Honble Apex Court. 26. So far points no. (b) & (c) are concerned, it is quite apparent from the material on record that Mortgage Suit No. 88 of 1977 filed by the State Bank of India against Arun Prakash Pandey was decreed on 22.6.1981. The said judgment and decree was challenged by Arun Prakash Pandey in F.A. No. 450 of 1981, whereas the State Bank of India filed Execution Case No. 65 of 1987 for recovery of the decretal amount, but when Arun Prakash Pandey or his heirs could not deposit the said decretal amount, 30 acres out of about 95 acres of the suit land were auction sold on 7.6.1988 to Ram Chandra Singh. 27. Immediately thereafter the sisters of Arun Prakash Pandey filed Miscellaneous Case No. 11 of 1988 in Execution Case No. 65 of 1987 claiming that they had a share in the suit lands as per decree dated 19.7.1978 of Partition Suit No. 17 of 1976. The said miscellaneous case was dismissed by the learned executing court against which the sisters of Arun Prakash Pandey filed Civil Revision No. 1700 of 1990. The said miscellaneous case was dismissed by the learned executing court against which the sisters of Arun Prakash Pandey filed Civil Revision No. 1700 of 1990. The said civil revision was finally allowed by this court on 21.5.1992 and the order passed by the executing court dated 27.8.1988 rejecting Miscellaneous Case No. 11 of 1988 was set aside on the ground that the decree in the partition suit provided 10 annas share to Arun Prakash Pandey and 6 annas share to his sisters, but no takhtabandi or final decree having been prepared in the said partition suit, Arun Prakash Pandey cannot be assumed to be the exclusive owner of any specific portion of land which can be put to auction in the execution of a decree only against him in the mortgage suit. It was also found that the entire suit land measured 95 acres and the lands involved in the auction sale was only 30 acres, whereas in the final decree of Partition Suit No. 17 of 1976 Arun Prakash Pandey will get much more land for his 10 annas share. Hence, this court held that the two remedies were available to the auction purchaser, namely, Ram Chandra Singh, were either to seek a partition for carving out a separate area from the share of Arun Prakash Pandey or to file an application in the final decree proceeding of the partition suit for including the area purchased by him in the Takhta of Arun Prakash Pandey. 28. The aforesaid order of this court dated 21.5.1992 passed in Civil Revision No. 1700 of 1990 was challenged by the State Bank of India vide S.I.P. No. 10800 of 1992 which was considered and dismissed on merits on 29.3.1993 by the Apex Court. The said order of this court was also challenged by the auction purchaser Ram Chandra Singh vide S.L.P. No. 8119 of 1992 which was withdrawn by him on 25.6.1992 to cash upon the impugned order of this court dated 21.5.1992 passed in Civil Revision No. 1700 of 1990. The said order of this court was also challenged by the auction purchaser Ram Chandra Singh vide S.L.P. No. 8119 of 1992 which was withdrawn by him on 25.6.1992 to cash upon the impugned order of this court dated 21.5.1992 passed in Civil Revision No. 1700 of 1990. In the said circumstances, it is quite apparent that order of this court dated 21.5.1992 passed in C.R. No. 1700 of 1990 was not only affirmed by the Honble Apex Court on merits, but the auction purchaser Ram Chandra Singh was bound to act according to the said order of this court by which he was given an opportunity either to file a separate partition suit for carving out a separate area from the share of Arun Prakash Pandey or to file an application in the final decree proceeding of Partition Suit No. 17 of 1976 for including the area (30 acres) purchased by him in the auction sale in the Takhta of Arun Prakash Pandey. 29. The said auction purchaser Ram Chandra Singh in spite of the aforesaid order of this court as well as the orders of the Honble Apex Court did not take any such step as mentioned above and after two years of the order of the Honble Apex Court adopted a procedure not mentioned in the said orders and filed a separate Title Suit No. 4 of 1994 for setting aside preliminary decree dated 19.7.1978 passed in Partition Suit No. 17 of 1976 on the ground of suppression of fact and fraud. The said auction purchaser Ram Chandra Singh also sought declaration that the order of the High Court dated 21.5.1992 passed in C.R. No. 1700 of 1990 was obtained by fraud. The said Title Suit No. 4 of 1994 continued for a long period, but finally it was dismissed for default on 24.5.2006, whereafter no step was taken by Ram Chandra Singh against the said dismissal before any court or forum. 30. The said Ram Chandra Singh also filed an application under Order XXVI Rules 13 and 14(2) read with Order XX. Rule 18 of the Code in the final decree proceeding of Partition Suit No. 17 of 1976 for a declaration that the preliminary decree passed in the said suit was fraudulent, collusive and nullity due to the suppression of the fact of death of Ugam Pandey in 1944. Rule 18 of the Code in the final decree proceeding of Partition Suit No. 17 of 1976 for a declaration that the preliminary decree passed in the said suit was fraudulent, collusive and nullity due to the suppression of the fact of death of Ugam Pandey in 1944. The said application was allowed by the trial court vide order dated 30.7.1997 and the preliminary decree dated 19.7.1978 passed in Partition Suit No. 17 of 1976 was declared collusive and fraudulent and accordingly, the final decree proceeding was dropped. Against the said order of the trial court, one of the sisters of Arun Prakash Pandey filed C.R. No. 1520 of 1997 which is under consideration of this court after remand from the Honble Apex Court. 31. During the pendency of the civil revision, F.A. No. 450 of 1981 which was filed by Arun Prakash Pandey against the decree dated 22.6.1981 passed in Mortgage Suit No. 88 of 1977 was dismissed by this court vide order dated 22.5.1998 with modification in the trial court judgment and decree as per the compromise between Arun Prakash Pandey and others as well as the State Bank of India, according to which the appellants Arun Prakash Pandey and others were ready to pay the amount due under the decree to the respondents-State Bank of India in two equal instalments by 31.7.1998 and 31.1.1999 to which the State Bank of India had no objection. The said order dated 22.5.1998 passed in F.A. No. 450 of 1981 was challenged in Civil Review No. 245 of 1998 which is under consideration of this court after remand from the Honble Apex Court. 32. From the entire facts and circumstances of this case, it is quite apparent that the question of auction purchase of 30 acres of land by Ram Chandra Singh in Execution Case No. 65 of 1987 and the proceeding of delivery of possession were considered in detail by this court in Civil Revision No. 1700 of 1990 and vide order dated 21.5.1992 the said civil revision was allowed and the auction sale and the subsequent proceeding including the delivery of possession in favour of Ram Chandra Singh in Execution Case No. 65 of 1987 were set aside. The said order of this court has been affirmed by the Honble Apex Court which rejected the claim and appeals of the State Bank of India as well as of the aforesaid auction purchaser Ram Chandra Singh. In the said circumstances, when the auction sale in the execution case and the proceeding of delivery of possession were themselves set aside by this court, the said Ram Chandra Singh had no right left in the matter except to withdraw the amount deposited by him in the executing court or to take any of the two recourses provided by the said order of this court dated 21.5.1992 which was affirmed by the Honble Apex Court. 33. Since the said auction purchaser Ram Chandra Singh admittedly having not taken any recourse to the abovementioned two options given to him by this court either by way of filing a separate suit for carving out a separate takhta for him or by way of filing an application in the final decree proceeding of Partition Suit No. 17 of 1976 for including the area auction purchased by him in the Takhta of Arun Prakash Pandey, the said order dated 21.5.1992 passed in C.R. No. 1700 of 1990 shut him out from raising any other claim as his auction purchase and the subsequent proceeding, including the delivery of possession in Execution Case No. 65 of 1987 was itself set aside and he had no locus to challenge the decree of partition between Arun Prakash Pandey and his sisters. Thus the only option left for him was to recover the money deposited by him at the time of auction sale in Execution Case No. 65 of 1987. 34. The application of Ram Chandra Singh (auction purchaser) dated 6.5.1995 filed in the final decree proceeding of Partition Suit No. 17 of 1976 was for declaring the preliminary decree of Partition Suit No. 17 of 1976 dated 19.7.1978 to be fraudulent, collusive and nullity due to the alleged suppression of fact of death of Ugam Pandey in 1944, i.e. much before 1956 due to which the plaintiff of that suit, namely, the sister of Arun Prakash Pandey would have no share in the property left by her father according to the provisions of the Hindu Law. It may be noted in this connection that in the year 1976 when the said partition suit was filed, there was no reason or occasion for the plaintiff of the partition suit, namely the sister of Arun Prakash Pandey to act fraudulently or collusively as even the mortgage suit was not filed by then. Furthermore in the said partition suit Arun Prakash Pandey, who was defendant, appeared and claimed that his father had died in the year 1958, but the learned court below decreed the suit on contest holding the sisters of Arun Prakash Pandey to be entitled to 6 annas share jointly in the suit property. The said decree was not challenged by Arun Prakash Pandey and thus it is clear that he accepted that he was not entitled to the entire 16 annas of the property left by his father, rather he was entitled to 10 annas share therein and the remaining 6 annas were of his sistets. 35. It is quite apparent that the entire suit property is 95 acres out of which Ram Chandra Singh (auction purchaser) had purchased only 30 acres by auction sale of 1988, i.e. after about 10 years of the decree passed in the aforesaid partition suit. Furthermore, even if Arun Prakash Pandey had 10 annas share in the said 95 acres of land he will get about 60 acres after Takhtabandi and final decree and hence the auction purchase by Ram Chandra Singh would have also not been affected by the said preliminary decree of partition. In the said circumstances, it is quite apparent that preliminary decree in the partition suit was neither obtained by fraud or collusion, nor it was a nullity and on that ground the final decree proceeding of the Partition Suit No. 17 of 1976 cannot legally be dropped specially when the said preliminary decree was never challenged and has attained finality. 36. First Appeal No. 450 of 1981 was filed by Arun Prakash Pandey challenging decree dated 22.6.1981 passed in Mortgage Suit No. 88 of 1977. 36. First Appeal No. 450 of 1981 was filed by Arun Prakash Pandey challenging decree dated 22.6.1981 passed in Mortgage Suit No. 88 of 1977. In the said first appeal on 22.5.1998, the defendants-appellants submitted that they were ready to pay the decretal amount to the respondent-State Bank of India in two equal instalments by 31.7.1998 and 31.1.1999 against which the State Bank of India had no objection and hence vide order dated 22.5.1998 the said first appeal was dismissed with the aforesaid modification in the decree regarding instalments. It may be noted in this regard that as far as back on 21.5.1992, this court while allowing Civil Revision No. 1.700 of 1990 had set aside the auction sale in Execution Case No. 65 of 1987 in favour of Ram Chandra Singh (auction purchaser) and had also set aside the subsequent proceeding of delivery of possession etc. as the property being held to be joint family property in a partition suit cannot be put to auction sale for recovery of any amount payable by one of the members of the joint family. The said order of this court dated 21.5.1992 having been challenged by the said auction purchaser Ram Chandra Singh was affirmed by the Honble Apex Court. In the said circumstances, the said Ram Chandra Singh (auction purchaser) had no right left in the suit property as an auction purchaser as any third party right which he had due to his auction purchase was not set at naught by the consent of the parties in the first appeal by order dated 22.5.1998, rather it was set at naught much earlier by a well considered judgment of this court dated 21.5.1992 passed in Civil Revision No. 1700 of 1990 which was affirmed by the Honble Apex Court in the year 1992 itself as would be clear from the abovementioned facts and circumstances. 37. Furthermore the said First Appeal No. 450 of 1981 had arisen out of a mortgage suit between the State Bank of India and Arun Prakash Pandey who were parties in the first appeal and the question in issue was with regard to amount recoverable in view of the deed of mortgage executed by Arun Prakash Pandey in favour of the State Bank of India. Hence, there was no occasion for this court to hear Ram Chandra Singh on 22.5.1998 while dismissing the first appeal with the consent of the parties. Furthermore, the auction sale in favour of Ram Chandra Singh having been set aside much earlier on 21.5.1992, there was no occasion for considering the contention of the auction purchaser Ram Chandra Singh who was not even a party to the first appeal. In the said circumstances, the decision of the Apex Court in case of Dwarka Prasad Agarwal (D) LRs. and Another V/s. B.D. Agarwal and Others, reported in (2003)6 SCC 230 , is not applicable to the facts and circumstances of the case as the aforesaid compromise in First Appeal No. 450 of 1981, arising out of a mortgage suit, was not between the members of Joint Hindu Family, rather it was between a mortgagee and mortgagor, namely, Arun Prakash Pandey and the State Bank of India and furthermore Ram Chandra Singh cannot be legally assumed to be transferee from any of the parties in view of order dated 21.5.1992 passed by this court in Civil Revision No. 1700 of 1990 affirmed by the Apex Court. 38. So far point nos. (d) and (e) are concerned, since the auction sale and the subsequent proceeding including the delivery of possession in Execution Case No. 65 of 1987 had already been set aside by this court vide order dated 21.5.1992 passed in Civil Revision No. 1700 of 1990, Ram Chandra Singh did not remain an auction purchaser any more and hence there was no question of commission of any fraud or suppression of auction sale by the parties to First Appeal No. 450 of 1981 while it was being dismissed on 22.5.1998. In view of the aforesaid order, the conduct of the appellants and the respondent of the aforesaid first appeal was quite legal and proper as the appellants and respondent merely accepted the decree of the suit and accordingly first appeal was dismissed on 22.5.1998. 39. On the other hand, the conduct of Ram Chandra Singh was absolutely illegal as the auction sale in his favour in Execution Case No. 65 of 1987 having already been set aside on 21.5.1992 in Civil Revision No. 1700 of 1990, he had no locus or occasion to continue claiming as an auction purchaser either in the learned court below or before this court. Hence, the conduct of Ram Chandra Singh shows that he has not only disobeyed the specific order of this court dated 21.5.1992 passed in Civil Revision No. 1700 of 1990, but has also tried to play fraud upon the court claiming to be auction purchaser which he was not after 21.5.1992. 40. So far points no. (f) and (g) are concerned, the basic principle of law is that an act of the court shall prejudice no man actus curiae neminem gravabit. This principle has to be considered alongwith another basic principle that the law does not compel a man to what he cannot possible perform lex non cogit ad impossibilia. The applicability of the aforesaid maxims have been affirmed by a series of decisions of the Honble Apex Court, including the case of Mohammed Gazi V/s. State of M.P. & Ors., reported in (2000)4 SCC 342 as well as in case of Ramesh D. Darbar & Ors. V/s. Narasingrao Krishnaji Kulkarni & Ors. reported in JT 2003(7) SC 209. It is not disputed that a party cannot be allowed to suffer-on account of an act of the court and hence the court is required to adjust the equities between the parties and will have to find out the remedy which would be just and equitable. 41. In the instant case Ram Chandra Singh had auction purchased 30 acres of land on 7.6.1988 in Execution Case No. 65 of 1987 which was in question in Civil Revision No. 1700 of 1990 and the said auction sale of 1988 was set aside alongwith the proceeding of delivery of possession etc. vide order dated 21.5.1992 and the said order was affirmed by the Honble Apex Court in the year 1992 itself in S.L.P. filed by Ram Chandra Singh. Hence, the said Ram Chandra Singh had two options of either complying with the said order of this court or to withdraw his money deposited by him at the time of auction purchase, but instead of complying the said order and/or withdrawing the consideration amount, Ram Chandra Singh went on filing frivolous suit/petition falsely claiming himself to be still an auction purchaser. Furthermore, the sisters of Arun Prakash Pandey having specific shares of 6 annas in the entire family land and Arun Prakash Pandey having 10 annas share therein which was not physically partitioned by metes and bounds, the auction sale of specific land for recovery only from Arun Prakash Pandey itself was not justifiable in any manner whatsoever. In the said circumstances, the sisters of Arun Prakash Pandey cannot be legally made to suffer on account of the order of the court passed in the mortgage suit considering the land of the joint family to be exclusive land of Arun Prakash Pandey. In the said circumstances, no equitable remedy lies in favour of erstwhile auction purchaser Ram Chandra Singh. 42. So far point no. (h) is concerned, it is quite apparent that the sale proceed of auction dated 7.6.1988 in Execution Case No. 65 of 1987 has been given as the decretal amount to the State Bank of India who was mortgagor-plaintiff of the mortgage suit. Furthermore, vide order dated 22.5.1998 passed in F.A. No. 450 of 1981 the State Bank of India was also allowed to receive the decretal amount of the mortgage suit in two instalments from Arun Prakash Pandey. Thus, it is apparent that the State Bank of India is unjustly enriching itself doubly by way of consent order passed in F.A. No. 450 of 1981 as well as by enforcing the decree of mortgage in the executing court. In the said circumstances, the erstwhile auction purchaser Ram Chandra Singh is entitled to get back the auction amount deposited by him in Execution Case No. 65 of 1987 as auction sale in the execution case and the proceeding of delivery of possession in his favour have been set aside by this court vide order dated 21.5.1992 passed in C.R. No. 1700 of 1990. Hence, the auction purchaser Ram Chandra Singh is fully entitled to recover the said amount of auction purchase from the State Bank of India either through the said execution case or through a separate proceeding as it is stated that the entire consideration money has been given by the executing court to the State Bank of India. However, the State Bank of India would be fully entitled to the decretal amount from Arun Prakash Pandey as per the orders of this court dated 22.5.1998 passed in F.A. No. 450 of 1981. However, the State Bank of India would be fully entitled to the decretal amount from Arun Prakash Pandey as per the orders of this court dated 22.5.1998 passed in F.A. No. 450 of 1981. This would legally adjust the equities between the parties. 43. In view of the aforesaid facts and circumstances as well as the findings based on the pleadings of the parties and the materials available on record, it is quite apparent that order dated 30.7.1997 passed by learned Subordinate Judge-VI, Motihari (East Champaran) in final decree proceeding of Partition Suit No. 17 of 1976 is illegal and perverse and the learned court below has committed a grave error of jurisdiction and hence the said impugned order is set aside and C.R. No. 1520 of 1997 is allowed. The learned court below is directed to expeditiously proceed for preparation of the final decree in accordance with the preliminary decree passed in the said partition suit. 44. Furthermore, from the aforesaid facts and circumstances as well as the findings based on the pleadings of the parties and the materials available on record, this court also does not find any error apparent on the face of record in order dated 22.5.1998 passed by this court in F.A. No. 450 of 1981, nor there is any fresh material to take any different view. The said order is quite legal and proper and accordingly Civil Review No. 245 of 1998 is hereby dismissed. 45. However, in the facts and circumstances of these two cases, there shall be no order as to cost.