Banerji and Aikman, JJ.
1. The suit out of which this appeal has arisen was brought by the respondent Raunak Husain for a declaration that a decree dated 29th June 1903 was null and void. It appears that Abbas Ali and his cousin Ahmad Husain owned certain property. On the 9th of July 1881 both of them executed a mortgage in favour of Jitta Mal in respect of a 4 biswa share in the village of Sadaruddinnagar, each hypothecating his 2 biswa share. On the 23rd of February 1900 Jitta Mal obtained a decree on the strength of that mortgage against Abbas Ali and the legal representatives of Ahmad Husain, one of whom is the plaintiff Raunak Husain, who in that suit was sued as a minor. On the 2nd of August 1889 Abbas Ali alone executed a mortgage of his 2 biswa share of Sadaruddinnagar and other property in favour of Jitta Mal. This mortgage and the decree of Jitta Mal obtained upon the prior mortgage of 1881 were assigned by him to Bhaironji Lal. On the 17th of November 1898 Abbas Ali alone executed in favour of Ghasi Ram a third mortgage of his 2 biswa share in Sadaruddinnagar and some other property. On the 16th of January 1903 Ghasi Ram brought a suit on the basis of this mortgage against Abbas Ali. As Ghasi Ram claimed redemption of the prior mortgages of 1881 and 1889 he impleaded as defendants Bhaironji Lal, the assignee from Jitta Mal, as also the heirs of Ahmad Husain, among whom was the present plaintiff Raunak Husain, who was sued as a major. He put in no appearance, and a decree was passed on the 26th of June 1903 against all the defendants providing for redemption of the prior mortgages held by Bhaironji Lal. Ghasi Ram has redeemed those mortgages and has assigned the decree to the appellant Niadar Mal. The decree against Raunak Husain and some of the other defendants was ex parte. On behalf of Raunak Husain an application was made under Section 108 of the Code of Civil Procedure to have the ex parte decree set aside on the allegation that he was a minor at the time of the suit. That application was dismissed by the Court of first instance after recording evidence and on the finding that Raunak Husain was of age on the date of the institution of the suit. Against this order an appeal was preferred to the learned District Judge. He found that there was 'ample evidence on the record to show that he (Raunak Husain) was of age on the date of the suit, and that there was no reason for not believing the evidence.' He accordingly on the 6th of July 1904 dismissed the appeal. On the 2nd August 1904 the present suit was instituted. The plaint no doubt contains statements to the effect that the proceedings taken by Ghasi Ram in obtaining the decree of the 29th of June 1903 were fraudulent. But it contains no specific allegation as to what constituted the fraud. At the trial no evidence of fraud was adduced. The only ground on which the validity of the decree was questioned was the same ground on which the application under Section 108 of the Code of Civil Procedure had been made, namely, that the plaintiff Raunak Husain was a minor on the date of the institution of Ghasi Ram's suit. The learned Subordinate Judge has come to a conclusion different from that at which he himself had arrived in the proceedings under Section 108 and also from the conclusion of the learned District Judge in that case. He has not only declared that the decree is ineffectual as against the plaintiff, but he has set it aside in its entirety. In our opinion, if the suit was maintainable and the finding correct, the only decree to which the plaintiff was entitled was a decree declaring that the decree of 29th June 1903 would not affect any rights possessed by him. The defendant comes here in appeal. We may observe at the outset that we afforded to the parties an opportunity of compromising the matter, but they have not availed themselves of it. We have heard the learned advocates for the parties and considered the evidence on the record. In our opinion the appeal must succeed. On the merits, the evidence as to the age of the plaintiff is far from conclusive. It appears that on the 17th of April 1902, that is, nine months before the suit of Ghasi Ram was instituted, the plaintiff executed a sale-deed as a person of full age, and got it registered. He also filed objections under Section 278 of the Code of Civil Procedure as a person of full age. In our opinion, the reasons given by the learned Subordinate Judge for preferring the evidence of the witnesses for the plaintiff to that of the witnesses for the defendant are not convincing. But, apart from this, the decision of the Court in the case under Section 108 in our opinion precludes the plaintiff from maintaining the present suit on the same grounds. We think the principle in Puran Chand v. Sheodat Rai (1906) I.L.R., 29 All., 212 applies. The learned advocate for the respondent relies upon the ruling of their Lordships of the Privy Council in Khagendra Nath Mahata v. Pran Nath Roy (1902) I.L.R., 29 Calc., 395. In that case the whole suit was attacked on the ground of fraud from beginning to end. Under those circumstances it was held that the dismissal of a previous application under Section 108 did not bar the suit. The following observations of their Lordships at page 399 seem to us to tell against the respondent: 'It is therefore necessary to ascertain what are the true grounds and scope of the present suit in order to see whether the refusal of the application under the sections specified has already determined the question now raised.' In the present case the question now raised was considered and determined against the plaintiff in the proceedings under Section 108. For the above reasons we allow the appeal, set aside the decree of the Court below and dismiss the plaintiff's suit with costs in both Courts.