Atkinson, J.:— These two first appeals arise from the decision of Subordinate Judge of Arrah, dated 29th May, 1914. Appeal No. 313 has reference to Original Suit No. 168 of 1912, and Appeal No. 412 is concerned with Original Suit No. 169 of 1912. The plaintiffs in both these suits are members of a joint Hindu family governed by the Mitakshra law residing within the district of Shahabad in this Province. The plaintiffs in Suit No. 168, i.e, the respondents in First Appeal No. 313 of 1914, are the adult members of this joint Hindu family; and the plaintiffs in Suit No. 169, who are the respondents in First Appeal No. 412 are the minor members of the Same Hindu family. This Hindu family appear to have been the maliks or proprietors of four separate denominations of land; viz., the real estate or properties known as Mangraon, Sangraon, Ismailpur and Sonsarpur and in respect of which they used to pay a revenue rent to the Government. They were also owners of another denomination of land known as Pankipur which is in reality part of the Mangraon Estate. The ancestors of these plaintiffs, on 19th June, 1887, made a usufructuary mortgage of the lands of Sangraon to one Abdul Ghani to secure a loan of Rupees 25,000. Abdul Ghani in pursuance of that mortgage, entered into possession of this property. Subsequently, on 25th November the plaintiffs or some of their ancestors entered into another mortgage-bond with the same Abdul Ghani to secure an advance of Rs. 5,000. This latter charge was a simple mortgage-bond. No question arises as to the validity of these mortgages.

2. Abdul Ghani was desirous of realizing the amount due on the simple mortgage-bond of the year 1889, and he instituted a suit to recover the principal sum advanced with interest; and he obtained a decree, ex parte, against the plaintiffs on foot of this mortgage-bond in the year 1903. It is significant to note in this connection that the plaintiffs also endeavoured to have the ex parte decree, which was obtained by Abdul Ghani, set aside upon the same ground as they now seek to have the ex parte decree obtained by defendant 1 set aside. The plaintiffs were successful in their attempt to have the ex parte decree obtained by abdul Ghani set aside; and on 27th July, 1908 the High Court of Calcutta set aside the decree obtained by Abdul Ghani; but on condition that the plaintiffs should pay to Abdul Ghani the sum of Rs. 15,904-5-4 by way of principal and interest due on foot of the simple mortgage-bond. The plaintiffs at the same time also embarked upon a redemption suit to ascertain what was due to Abdul Ghani on the usufructuary mortgage of 19th June, 1887 and after a considerable time it was ascertained, on 19th March, 1909, that the amount due by the plaintiffs to Abdul Ghani in the redemption suit on foot of the usufructuary mortgage was Rupees 71,116-7-3. In the month of March 1909 the plaintiffs were in very low water, financially, and they were anxious to pay off Abdul Ghani the amount due on foot of the decree of 27th July, 1908, decreed by the Calcutta High Court, together with whatever sum was due in the redemption suit Accordingly early in March 1909 the plaintiffs obtained an introduction to the predecessor-in-title of defendant 1, referred to in these proceedings as the Pundit, who was a resident of the Unted Provinces, and who was, at that time, on a visit to Arrah; and the adult plaintiffs induced the Pundit to agree to advance to them and their family to discharge a pressing necessity the sum of Rs. 40,000, Rs. 15,904-5-4 of which was to be paid immediately in full discharge and satisfaction of the debt due on the simple mortgage-bond to Abdul Ghani; and the balance, Rs. 24,000 odd, was to be retained by the Pundit in his own hands until it had been ascertained exactly what was the amount due in respect of the redemption suit, or what sum Abdul Ghani would take by way of compromise to satisfy his claim in that suit.

3. The plaintiffs, it is alleged, represented to the Pundit that although the redemption decree was for Rs. 71,000, nevertheless Abdul Ghani would accept a sum far less in satisfaction of both decrees, and they believed that it would not exceed in all the sum of Rs. 40,000. The plaintiffs are further alleged to have represented that if more money was necessary than the sum agreed to be advanced by the Pundit that they, the plaintiffs, would procure same and thus discharge the debt due to Abdul Ghani immediately and release the lands from all claims; and incidentally, the plaintiffs also represented that there were no other charges by way of mortgage upon the properties in suit. In so far as this latter representation made by the plaintiff is concerned it was subsequently discovered to be false; as the Pundit ascertained that there was a mortgage due to another person for the sum of Rs. 4,000 which the Pundit had subsequently to redeem. The Pundit agreed to advance to the plaintiffs sum of Rs. 40,000 on the condition that he was to get an usufructuary mortgage of the properties of Sangraon and Mangraon; and that as collateral security he was also to have a simple mortgage in respect of all the four properties mentioned and there was a further agreement that in the event of the Pundit's not getting possession of the properties contracted to be given to him under the usufructuary mortgage, that then he should be repaid the whole of the principal of Rs. 40,000 by June 1920 with interest at 12 per cent i.e, 3 per rent over and above the rate contracted to be paid if the agreement as a usufructuary mortgage became fully accomplished and completed. The original interest agreed upon was 9 per cent but the Pundit stipulated that if he did not get possession, then the interest should be increased, until the whole of the principal sum advanced by him should have been repaid. The contract, in the terms set out by me above, was embodied in a mortgage-deed, dated 24th March, 1909. I have given a summary of the terms of the contract; save as to one provision contained in Cl. 14, to the effect that if the sum of Rs. 40,000 should prove insufficient to discharge and satisfy the money due to Abdul Ghani in full, that then the plaintiffs in these suits would make up the deficiency necessary out of their own pockets and would deliver clear possession to the Pundit of the lands of Mangraon and Sangraon agreed to be given to him in usufructuary mortgage. There is no doubt that the Pundit was very anxious to enter into possession of these properties. Prom the moment the mortgage was executed by the plaintiffs he was pressing — and pressing strongly—that they should discharge the obligation due to Abdul Ghani under the contract which the plaintiffs had made with him, and should secure the release of the properties from all claims, and give him (the Pundit) clear possession. The contract was executed by all the plaintiffs who were adult members of the family; and also by plaintiffs 1 and 3 in First Appeal No. 412. The other members, who are minors, did not execute the mortgage in question.

4. The object and purpose for which the contract and the mortgage-bond were made by the plaintiffs in favour of the Pundit was to raise money for a family necessity, for the purpose of discharging a debt which involved the risk of the whole of the joint family property being put up for sale and their rights therein extinguished for ever, and the obligation so contracted was consequently a debt binding the property and interests of all the members of the joint family. The Pundit, finding that the plaintiffs were unwilling to pay up Abdul Ghani the amount due on the redemption decree, on the ground that the amount found to be due by the decree was excessive, induced them, the plaintiffs, in May 1909 to appeal to the Calcutta High Court against the redemption decree sanctioned by the Subordinate Judge, and that appeal was successful in the year 1915 and the amount of the decree was reduced to the sum of Rs. 31,000. From that order of the Calcutta High Court Abdul Ghani has appealed to the Privy Council; and the Pundit and his representatives have never got possession of the lands contracted to be given to him in usufructuary mortgage.

5. Finding it impossible to get possession or to induce the plaintiffs to perform their part of the contract by raising more money to satisfy Abdul Ghani's claim and deliver clear possession to defendant 1, or to his predecessor-in-title, the Pundit or rather defendant 1 brought a suit in October 1909 seeking to recover judgment for the amount of Rs. 15,904 old, which he or his predecessor-in-title had admittedly paid to satisfy Abdul Ghani's claim in the suit on foot of the simple mortgage-bond. That money was paid and applied to the discharge of Abdul Ghani's claim against the plaintiffs in the present suits. Abdul Ghani's claim, which had crystallized into a form of a decree, constituted a pressing family necessity binding on the plaintiffs and all the members of the joint family, and the money which was borrowed by the plaintiffs from the Pundit to discharge that pressing necessity was a debt binding in all equity and good conscience upon the entire joint Hindu family and of which the plaintiffs in these two suits constituted the entire and exclusive members. Prior to instituting his suit, defendant 1, who was the plaintiff in the former suit, served the present plaintiffs with a notice dated 16th September, 1909 requiring them within 15 days to give him (defendant 10) clear possession of the property contracted to be given to him by the mortgage-deed, and stating that if they did not-comply with the requirements of the notice, be (defendant 1) would be forced to seek the protection of the law. Upon the plaintiffs failing to comply with the requirements of the notice as stated, defendant 1 instituted a suit based on the allegation that he had been induced to contract to lend Rs. 40,000 by reason of the plaintiffs' misrepresentation and fraud. The notice was admittedly served and admittedly received by the plaintiffs; because it was proved that defendant 10 in the former suit came on receipt of that notice to the Pundit and said:

“We are sorry we cannot give you possession of all the lands at present; will you kindly take possession of a part only until such time as we are able to give you the rest of the property discharged from Ghani's claim?”

6. Therefore it may be taken as conclusively proved that the notice of 16th September, 1909 was duly and properly served upon the plaintiffs in these suits and was received by them.

7. On 11th October, 1909 the plaint in the former suit was filed. Defendant 1 in this action instituted proceedings against the plaintiffs in these two appeals as defendants, and all the members of the joint Hindu family were named as parties. Five of these were minors and the remaining members were adults. The plaint was served on 11th October, 1909. There was no appearance on behalf of the present plaintiffs, who were defendants in that suit; and by reason of default in appearance a decree for Rs. 16,918-10-0 was obtained by defendant 1 in that suit against all the members of the joint Hindu family on 3rd December, 1909. Immediately following the obtaining of that decree defendant 1 took steps forthwith to execute the decree; and in January 1910 execution proceedings were commenced and all necessary steps were taken to execute the decree which defendant 1 had obtained ex parte. Notices of attachment of the property to be sold pursuant to the decree are alleged to have been duly served upon the defendants in that suit; and the property was duly attached on 10th March, 1910; and notices to assess the value of the property to be sold were also alleged to have been served upon them. In the absence of any objection on the part of the defendants in that suit the property was advertised for sale on 6th June, 1910. The property attached namely, Mauzas Mangraon, Sangraon, Ismailpur and Sonsarpur was put up for sale and was purchased on 6th June, 1910 by defendant 1, the decree-holder himself for the sum of Rs. 15,450, being a sum less than the amount actually due on foot of the ex parte decree of 3rd December, 1909. As I have pointed out the Pundit's claim was for the amount actually advanced by him, viz., Rs. 15,904 together with interest due to him thereon at 12 percent, mailing in all Rs. 16,000 odd. Defendant 1 could not and did not claim to recover the full sum of Rs. 40,000 which was contracted or agreed to be advanced on foot of the mortgage of 21th March, 1909. The amount realized by the sale was Rs. 15,450. Thus there was a deficit of about Rs. 1,498-100 between the sale price and the amount due under the ex parte decree. But in the course of the sale it was discovered that there was another encumbrancer on the property sold to defendant 1 who was not mentioned at all at any stage of the proceedings by the present plaintiffs; and the Pundit had to discharge the debt due to that encumbrancer viz., Rs. 4,000 which brought the Pundit's claim, after crediting realization of the sale proceeds, to Rs. 5,498-10-0 as the amount of the deficit due on foot of the decree. Matters proceed and on 27th August, 1910 the Court gave the Pundit symbolical possession of the property which was sold in pursuance of the ex parte decree. Abdul Ghani, however was in possession of the lands of Sangraon pending the adjustment of his claim in the redemption suit.

8. The next step to notice is that immediately after defendant 1 as purchaser, had acquired possession of the property under the Court sale, he took steps as against the plaintiffs in these suits for the recovery of the amount due by way of deficit amounting to about Rs. 5,498-10-0 seeking to make them personally liable for the amount of the deficit. Proceedings were instituted under Section 69 of the Ben. Ten. Act by the Pundit against the plaintiffs on the basis that the decree obtained by him was a valid and binding decree; and on the assumption that the plaintiffs were aware and had knowledge of the existence of the ex parte decree which it must be presumed, had been validly obtained. In January 1911 the plaintiffs compromised with the Pandit, in so far as the Pandit was seeking an order against them under Section 69 of the Ben. Ten. Act to satisfy the undischarged deficit due on foot of the ex parte decree. The next step taken was that on 2nd December, 1912 these actions were launched by the plaintiffs to set aside the decree procured by the Pundit on 3rd December, 1909 exactly 3 years but one day after the decree was obtained; and the ground on which it is sought to set aside the decree is that it was procured by fraud, the fraud alleged being suppression of notices and filing of false returns.

9. The learned Judge who tried the case has found as a fact that there was suppression of service of notices, and that the returns of service filed were false returns; and he has found as a fact that there was fraud practised in the procuring of the decree. In the face of this finding of fraud, it is quite impossible to understand how the learned Subordinate Judge made the order he did, requiring the plaintiffs to pay to defendant 1 the amount the Subordinate Judge ascertained to be properly due to defendant 1 as a condition to setting aside the ex parte decree which the Judge found as a fact had been procured by fraud. No doubt it is always difficult for a Court of appeal to differ from any Judge who hears and sees the witnesses who have been examined, and who has the best opportunity of measuring the degree of ore lit to be attached to their testimony: but in this case I feel that there are ample and sufficient reasons why we should depart from this general principle and reverse the finding of the learned Subordinate Judge on the question of fraud; and I have little hesitation in doing so. Let us examine, step by step, the allegations of fraud relied upon. The first is that the plaint was never served; and that the return of service that was made by the peon was a false and incorrect return. Mr. Mullick on behalf of the respondents now alleges that the plaintiff in the former suit, in conjunction with the identifier, conspired to procure this false return to be filed. Let us see what is the evidence relied upon to support his startling charge.

10. The main ground put forward in support of the charge is that the identifier, Hariramji, was not called as a witness although present in Court. At first blush I was inclined to attach great weight, in support of the charge of fraud, to the fact that the identifier, who was supposed to have identified the persons who were served, although present in Court, was not called to prove the identification of the persons on whom the summons was served. But I think that although it was a grave error on the part of the legal advisers of the Pundit not to have called the identifier, there are sufficient reasons to explain why he was not called; or at least to destroy the impression that on account of the identifier not being called one would be entitle to infer, or justified in inferring under the circumstances that the whole proceeding connected with the service of the summons was fraudulent or dishonest. The second ground relied on in support of the contention that the summons was not served is that the two witnesses, alleged to have been present when the summons was served as stated in Col. 3 of the return made by the peon, were called and denied the allegation contained in the peon's return that they were present when the summons was served. These two persons, Darip Dusadh Chowkidar and Ramgobind Chamar, are inhabitants of Mangraon and intimately connected with the plaintiffs, and it is only natural that they should endeavour to serve the interests of the plaintiffs rather than assist the defendant who was an utter stranger in support of his case. The evidence of Dulip Dusalh witness 3 for the plaintiffs and Ramgobind witness 9 for the same party does not appear to me on its face to be honest or sincere; on the contrary it is stamped with falsity and exaggeration in addition to being contradictory and unreliable.

11. But a short answer to these two points seems to be that the plaintiffs themselves have not come forward to depose that they were not served with the plaint. None of the plaintiffs, except two, came forward to swear that they were not served with summons; while on the other hand there is documentary evidence to show that they were served; and the evidence which shows that they were served has not been rebutted or impeached. The next point that is alleged in proof of non—service of summons is that one Basudeo Panda, who was present when one of the plaintiffs Ramnares Rai was served with the summons and which writing acknowledged receipt of the summons on behalf of this plaintiff, was not called. I do not know why he was not called. If the plaintiffs were anxious to establish that he was not there they could and should have called him, but they did not do so. The fourth and last ground on which it is sought to prove that the summons was not served is the discrepancy in the details given in the peon's return as compared with those set forth in the identifier's affidavit—namely, the peon reported that he served the summons by affixing it to the walls of two houses one facing North and the other facing West; whereas the identifier in his affidavit says that the notices were fixed to one house only and that facing East. I think that the discrepancy in the identifier's affidavit with the peon's report may be excused in this case by the fact, which is not denied, that the identifier knew very little of this Province; that he comes from the United Provinces, and that he was not primarily concerned with the surroundings or situation of the property to which the summons had been affixed but with the identification of the persons to be served with the summons.

12. Now these are the grounds and reasons upon which we are asked to hold that there was fraudulent suppression of service of the summons in the former suit on the plaintiffs in the present suits, and the filing of false returns. The peon was called by the Pundit's legal advisers and he prove the service as stated in his return; but the plaintiffs have deliberately held themselves back and have refrained from giving any evidence to prove that they were not served with the summons as alleged by the peon. One of the plaintiffs, namely original defendant 10, was called but he says nothing about it. Another, original defendant 15, was also called but not one word was asked of him as to whether he was served with summons or the plaint or not. He was only asked his age, viz., whether he was a minor or whether he was a major. But what does appear to me to be of great importance in this aspect of the case is the evidence of Ramsaran Lal the pleader, witness 12, who was examined for the defence. It is not suggested that he was in conspiracy with defendant 1, or with his identifier or with the peon. His evidence has not been impeached or challenged in any one respect. He is a respectable gentleman practising as a pleader in the Court at Arrah, and there is no reason to doubt that the evidence given by him is genuine and reliable; and once we accept and believe his evidence, as we do, the plaintiffs' case is established to be transparently false—false from start to finish. The learned Judge who tried the case finds that this witness, Ramsaran Lal, is a truthful and reliable witness; and what does the witness say? At p. 154 of the paper-book this witness says:

“I had nothing to do with the service of processes in the locality. I have personal knowledge of the service of processes. After the service of summons Deoki and Brij Mohan came to me, and said that they were respectable men and the suit would ruin them, and that hearing of that suit other creditors might bring suits.”

13. Is that not an admission by at least two members of the plaintiffs' family that they had been served with the summons and that they begged of this pleader to save their respectability and honour because they were apprehensive that this suit might induce other creditors to bring other suits against them? This witness, as I have said, is a truthful witness; and on this point touching service of summons, irrespective of other matters, we accept his evidence as trustworthy. Therefore, we hold that the summons and the plaint were duly served; and that the discrepancy between the peon's report and the identifier's affidavit does not outweigh or discredit the evidence and value of this pleader's testimony; more especially as none of the plaintiffs have come forward to prove that they were not served, which was the foundation of their case, and their right to the relief they seek. Therefore, we hold the present plaintiffs were duly and properly served with the summons in the former suit instituted by defendant 1 and their case must fail on that ground. Secondly, it is alleged in support of the plaintiffs' case that the notice nominating guardians of the minors was not duly served. However, one is inclined to view this ground of alleged fraud with suspicion, when the main case put forward as to non-service of the summons or plaint has failed and utterly broken down. The ground put forward in support of this contention is that the identifier who identified the persons to be served was not called. However, the peon's report satisfies us that the notice nominating the guardians of the minors was duly served. The third process, the service of which is alleged to have been suppressed, is the notice to assess the valuation of the property to be sold. Here again the main allegation relied on is the fact that Hariramji, the identifier, was not called to prove identification of the persons served with the notice. Again, the three witnesses who were alleged to have been present at the time of service of notice have been called by the plaintiffs; and they say that they were not present when the service of notice was alleged to have been effected. These three persons are residents of Mangraon and probably tenants of, or connected in some way or other with, the plaintiffs and there are very good reasons to suggest why they should be friendly disposed towards the plaintiffs as against the defendant who is a stranger to this Province. However, the evidence of these witnesses, who are the same persons as were called to prove non-service of the summons or plaint, is in my opinion utterly lacking in conviction, or certainly that their evidence is true or reliable.

14. If the fact was, as alleged, that there was a conspiracy between defendant No. 1 and his servants to effect false service of all processes in the suit, surely the conspirators would not have named persons as being present at the time of service when they were not there at all. A conspiracy so designed would be a clumsy proceeding easily capable of being detected. Much capital is made of the fact that one person is wrongly named as being present at time of service in the peon's report. There is a man with a slightly different name somewhat like the name given in the report, known as Bedaisi Bhar; and he is called. He deposes that there is no man by the name of Bindeawari Bhar (the name given in the return) in the village; and that if the person named in the return has reference to himself, he was not present when the notice was served. Much capital is also made out of the use by the peon of the words, zamindari kaohahri; because witness 13 for the defence who followed the peon deposes that in this particular village of Mangraon there is no zamindari kachahri at all. We are asked to infer from these facts that the peon is lying when he makes the statement that he wrote his report in the zamindari kachahri after serving the notice. But assuming that this statement was erroneous, the question is, did the peon make this statement fraudulently and in the interest of defendant 1 who was the plaintiff in that suit; and did the plaintiff know that he (the peon) was fraudulently acting in making a wrong entry as to the place where he filled in the report and the persons upon whom he served the notice. The peon's report may have been irregular, but did defendant 1 know and induce the peon to file a false report and return as to service? The onus of proving this lay heavily upon the plaintiffs in these suits, which onus they have completely failed to discharge.

15. The next ground urged in support of fraud is that the manner in which the notices attaching the property to be sold were served was altogether wrong, viz. that there were five properties to be attached but only four notices are alleged to have been served and that, therefore, the attachment and sale held pursuant thereto are illegal and not according to law. However, this argument is misconceived, as there were only four and not five properties attached; inasmuch as Pankipur forms part of Mangraon. It is stated that notices of attachment were served by affixing same to a pee-pal tree in one of the villages attached. This may have been an irregular method of service; but was it fraudulent? I have little doubt that all the plaintiffs well knew as their subsequent conduct shows, that the notices of attachment had been affixed to the appal tree. If however these notices had been irregularly served, the illegality affecting the question of service could have been dealt with under the provisions of O. 21, R. 90 of the CPC, and the sale set aside. But the plaintiffs refrained from taking any steps under that order to impeach the sale on the ground of irregularity but they seek now to rely on the alleged irregularity to support a substantive charge of fraud.

16. It is urged that the service of all notices was suppressed and that false retuns were filed. This is the main ground upon which the plaintiffs seek to set aside the ex parte decree of 3rd December, 1909 on the ground of fraud. Let us look at the evidence adduced on behalf of the defendant to rebut the allegation of fraud put forward by the plaintiffs, I have dealt with the evidence of the pleader. I think that it conclusively established that the summons or plaint was served. But apart from that evidence there are other circumstances in this case which support that view. The defendant's claim was a claim for money, undoubtedly advanced by him to the plaintiffs or for their, benefit. No doubt Cl. 6 of the mortgage-bond might be considered to suggest that defendant 1 was not justified in bringing ??? suit at the time he did; that he should have postponed bringing his action even though he did not get possession of the mortgaged property until June 1910; and that therefore the he had no cause of action at the time and that suit was not maintainable. We have considered that aspect of the case, and we think that the plaintiffs are not entitled to paise this point now, although it might have been quite a good ground of defence to urge at the trial; and the Trial Judge would then have been bound to consider it. I think the law on this point is very clearly laid down by their Lordships of Privy Council in a case reported as Ledgard v. Bull(1) Their Lordships say:

“But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure which, if objected to at the time, would have led to the dismissal of the suit.”

17. Thus if the plaintiffs in the present suits, who, as we have held, were duly served with the summons or plaint, had raised the point that the claim of the plaintiff in the former suit was not ripe, it might have been incumbent upon the learned Judge who tried the suit to reject the plaint in that action; but having held back and having abstained from taking part in the proceedings and allowed issues to be framed, the trial to proceed and judgment to be obtained against them, and the debt having in consequence merged into the decree, it is not competent for the plaintiffs now to say that the Judge had no jurisdiction to try the suit. But irrespective of this contention there are other reasons for holding that the amount duo was properly recoverable at the time that the suit was brought. Defendant 1's claim in the former suit is an honest claim for money paid by him for the benefit and on behalf of the plaintiffs. Moreover the plaintiff in the former suit, i.e, the Pundit, on 16th September, 1909 demanded the fulfilment of the defendants' (i.e, the present plaintiffs') part of the contract, by giving him (the Pundit) clear possession of the mortgaged property; and in default the Pundit held out the threat that he would be compelled to institute legal proceedings against them. Admittedly this notice of 16th September, 1909 was served, this is not denied. The plaintiffs must have been aware that proceedings had been taken against them by defendant 1 pursuant to the notice of 16th September, 1910; and that there had been symbolical possession given of the property purchased under the Court; because from August 1910 onwards these plaintiffs never paid one pice in discharge of Government demands by way of revenue or cesses, etc., although admittedly these charges fell due quarter by quarter for two years and three months after 6th June, 1910 when the sale was effected and 2nd December, 1912 when this suit was instituted.

18. During these two years and three months these plaintiffs must have known very well that they were not paying anything towards Government demands in respect of this property. Who did they think was paying the Government revenue during this period? One is irresistibly led to the conclusion that the plaintiffs must have known that it was defendant 1 who was discharging these claims as auction purchaser of the property. Furthermore defendant 1, immediately after getting possession on 27th August, 1910, proceeded by way of execution against the plaintiffs personally to take steps to realize the balance due on foot of the decree, which amounted to Rs. 5,498-10-0, and the plaintiffs compromised with him on the basis that he was making a valid claim on foot of the decree he was seeking to execute. The defendant in this action relies strongly upon the compromise effected in the proceedings under Section 69 of the Ben. Ten. Act, for the purpose of showing that he was recognized by these plaintiffs as having a valid title under the decree, and he asks us to come to the conclusion or draw the inference that the plaintiffs' laches in seeking redress negatives the idea that these plaintiffs are now bona fide claiming relief against a wrong fraudulently done to them by defendant 1. For three years all but one day they took no step whatsoever to challenge or impeach the decree of 3rd December, 1909. For two years and three months from the time that defendant 1, as purchaser, took possession of the plaintiffs' property they took no steps to pay the Government revenue or to inquire who was discharging the obligations primarily imposed on them.

19. The law likes a man who has been wronged to seek redress at the earliest possible moment and lay bare his claim openly and candidly; and not as in this case, to allow time to lapse and then come forward and seek to set aside a decree on the ground of fraud. If such a person hangs back, and refrains from taking action, with knowledge of the wrong alleged to have been done to him, he cannot complain that the bona fides of his claim should be viewed with suspicion. The fraud alleged in this case mainly is the suppression of the service of notices; and yet not one of the plaintiffs have come to the box to give any evidence in respect of the non-service of the summons or notices, or to offer any evidence concerning any matter connected therewith. It is perfectly certain having regard to the frame of the suit that the plaintiffs were not bound to apply for redress under O. 9, R. 13 of the CPC. If their case had been confined merely to non service of the summons, then they would be bound to apply under O. 9, R. 13; and no action would have been maintainable independent of the summary remedy provided by the rules of the Code. But that is not their case. It is a case in which fraud is alleged in the procuring of the decree, and it has been held in the cases to which I shall refer that where fraud is alleged in the procuring of a decree the parties may institute a suit for fraud independent of the provisions of O. 9, R. 13. The cases reported as Pran Nath Roy v. Mohesh Chandra Moitra(2) Ram Narain Tewari v. Shew Bhunjan Roy(3) and Nanda Kumar Howladar v. Ram Jiban Howladar(4) all establish this. But the learned Sir Lawrence Jenkins, C.J, says that:

“The jurisdiction to impugn a previous decree for fraud is beyond question…. But it is a jurisdiction to be exercised with care and reserve.”

otherwise there would be no finality in legal proceedings and judgments of the Court would he rendered vague and uncertain and the administration of the law might readily be converted from an instrument of justice into an instrument of grave oppression; as I think the plaintiffs in this case are trying to make it. The plaintiffs have alleged fraud, I think that they must be required to give proof that there was actual and positive fraud on the part of the plaintiff in the former suit, namely

“a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining a decree by that contrivance; Patch v. Ward(5).” lays down the standard of fraud necessary to be established in such cases and the nature of proof that is required to be given is stated in the decision reported as Kunwar Bahadur v. Bindraban(6). We have considered the argument addressed to us on behalf of the plaintiffs very fully and with the greatest care and we come to the conclusion that on the established fact the plaintiffs are not entitled to succeed.

20. Other questions have been raised in this case, but the main question addressed to us was the question of fraud with which we have dealt so fully. We think it is necessary to deal briefly with the other points. It is necessary to consider the argument addressed to us on behalf of the minors. It is contended by Mr. Mullick on behalf of the minor plaintiffs in Appeal No. 42 of 1914 that the decree obtained on 3rd December, 1909 is not valid or binding on them because the minor plaintiffs were named as defendants in the former suit, inasmuch as they were not properly represented in the course of the proceedings and consequently that they were not parties to the action; and that therefore the decree was not a binding decree at least to the extent of their interest in the property in suit; and that the suit should have been dismissed as against them. Much argument has been addressed to us by learned counsel on the question of the propriety and legality of joining the minors as defendants in the former proceedings. It was contended by Mr. Mullick that the nominated guardians of the minors had not been properly appointed under the provisions of the rules and orders of the Code of Civil Procedure. It appears that on 11th October, 1909, after the summons and the plaint had been served, defendant 1, who was the plaintiff in that suit nominated as he was entitled to do, certain persons as guardians of the minors and be caused notices to be served on these persons of their nomination requiring them to act as the guardians of the minors and stating that in default the Court would appoint some other fit and proper person to represent the minors.

21. The persons upon whom the notices had been served, namely, Har Prasad Rai and Kali Charan Rai, defendants in the suit, were requested to express their willingness to act as guardians by 24th November, 1909 and to state if they accepted the responsibility of action as guardians of the persons named, namely, defendants 4, 5 and 10. The nominated guardians filed no answer to the notice served on them and on 3rd December when the case came on for final disposal, defendant 1 applied to the Judge to appoint Har Prasad Rai and Kali Charan as the guardians of the three minors named; and the learned Judge without receiving the assent of these persons upon whom the no ices had been served, added them as defendants and guardians of the minors in the suit. We think that the procedure adopted by the learned Judge in so adding these persons as guardians without their assent was without jurisdiction. O. 32. R. 4, sub-R. 3, provides that “No person shall without his consent be appointed guardian for the suit.” It is now-clear that no person can be appointed as guardian on behalf of a minor without his consent. This Order is mandatory and imperative in its nature; and it is quite clear that it would amount to nothing short of want of jurisdiction in the Court to appoint such a person without his consent. We adopt the law which we think was accurately laid down in the cases reported as Dinabandhu Nandi v. Mashuda Khatun(7) and Talukraj Ker v. Choolachooa Koer(8). The orders of the Code of Civil Procedure which apply to this case are O. 32, R. 3, sub-R. 4; and R. 4, sub-R. 3. Mr. Dass who appears on behalf of the defendant relies strongly upon the decision of the Privy Council reported as Walian v. Banke Behari Pershad Singh(9). But I do not think that their Lordships of the Privy Council in that case went or intended to go so far as Mr. Dass endeavoured to argue before us; but it appears to us that the facts of the present case are different from the facts of the case reported as Walian v. Bank Behari Pershad Singh and having regard to the particular facts of the case before us and to the recent changes in the law as to the appointment of guardians of minor enacted by the Legislature since the decision of the Privy Council in the case report as Walian v. Banke Behari Pershad Singh, we hold that the minor defendants in the former suit were not “effectively represented” and that consequently they were not parties to the suit.

22. However, at the last moment in reply Mr. Dass for the appellant for the first time suggested that it was a matter of indifference whether the minors were made parties or not as defendants in the former suit; and that even if we held that the minors were not parties to the suit be is entitled nevertheless to maintain the decree in toto not only as against the adult plaintiffs, but also against the interests of the minor in the property in suit even though they were not joined as parties; because, he says, defendant 1 admittedly advanced his money in discharge and satisfaction of a debt due by the plaintiffs for a family purpose and necessity, and that consequently all the members of the joint family, adults and minors, would be bound by any decree obtained against the family for the recovery of such a debt. This view of the law is not disputed on behalf of the plaintiffs pud the law seems now to be fairly settled that in a joint Hindu family governed by the Mitakshara law, if a debt is contracted on behalf of the family by the “karta” or managing member or members and it is proved that it was a debt contracted for the benefit of the joint family that any judgment obtained against such managing member or members in respect of such a debt is binding upon all the members of the joint family, adults and minors, and that the joint property of all the members of the joint family is liable to satisfy and discharge the same. The authorities for this proposition are to be found in the cases reported as Mt. Bebee Baehun v. Sheikh Hamid Hosein(10), Sheo Shankar Ram v. Jaddo Kunwar(11), Hori Lal v. Nimman Kunwar(12) and Kishen Parshad v. Har Narain Singh(13). To the same effect is the law stated by the Chief Justice of this Court in Ranjit Prasad Tewari v. Ramjatan Pandey(14). There are numerous authorities all tending to show that a decree obtained against the managing member of the joint Hindu family in respect of a debt incurred for the benefit of the joint family is binding on all the members of the family, whether adult or minors. Mr. Mullick argues that in this case the debt was not a debt contracted for a family necessity.

23. But we are of opinion that the debt was incurred for a family necessity, as we have already pointed out in the earlier portion of our judgment; and that the decree obtained for the recovery of the same was binding on all the members of the joint family, both adult and minors. Mr. Mullick, however further contends that the judgment and decree in this case is a personal judgment and decree against the persons named as defendants to the suit; and that inasmuch as the minors were not effectively represented and were not is consequence parties to the suit that therefore their interests were not affected. Well, I think that this argument is also unsustainable having regard to the recent decisions reported as Sripat Singh v. Prodyot Kumar(15), which followed Mahabir Pershad v. Moheswar Nath Sahai(16). Mr. Mullick also argues that only the right, title and interest of the adult members of the joint family was sold in pursuance of the decree and not the right, title and interest of the minors in the property in suit and that the decree was a mere money-decree against the properly represented defendants and not a decree against the joint family property or a decree in which the joint family property was liable for the discharge of the family debt. Looking to the plaint, and that is the best test, one sees that what the plaintiff in the former suit claimed was a decree as against all the members of the family and in respect of the entire joint property and what the judgment of 3rd December in effect did grant was the relief claimed by the plaintiff in that suit.

24. As to the question of inadequacy of price for which the property was sold to defendant 1 on 6th June, 1910, no argument has been urged or pressed before us beyond the mere suggestion that the property was worth two-and-a-half to three lakhs of rupees and that thus by inference the sum of Rs. 15,405 was an inadequate price for a property of such considerable value. However any real evidence as to inadequacy of price is conspicuous by its absence; and we see no reason whatever for holding on the evidence that the property in suit sold on 6th June, 1910 was sold and purchased by defendant 1 for an inadequate price. With regard to the question as to whether the minor plaintiffs I and 3 were estopped by their conduct from disputing the validity of the decree obtained on 3rd December, 1909 it is unnecessary to decide having regard to our decision on the other issues in the case. I have no hesitation in saying therefore that the decree obtained on 3rd December, 1909 was legally binding on the plaintiffs as a joint Hindu family and that what passed to the present defendant 1, as purchaser at the sale in execution of the decree, was the entire joint family interest and estate in the four properties which I have mentioned, two of which have since been sold, viz., Ismailpur and Sinsarpur, for arrears of Government revenue and were of little value we have heard this case at great length and have received considerable assistance from the counsel for the appellant and the learned vakil for the respondents.

25. We have carefully considered the arguments addressed to us on toto sides and have come to the conclusion that the judgment of the learned Subordinate Judge dated 29th May, 1914 decreeing the suit of the respondents in these appeals cannot stand. We accordingly set it aside and allow this appeal with costs in both Courts.

V.S/R.K

26. Appeal allowed.