1. The suit out of which this appeal has arisen was brought under the following circumstances. The defendant-respondent Prag Dat Pande executed a mortgage on the 10th of June 1884 and on the basis of that mortgage a suit was brought for sale against Prag Dat, his two sons Rajwant and Bhagwant and against the sons of Rajwant and Bhagwant. The suit was defended by Rajwant and his sons but the other defendants did not appear. A decree was passed on the 30th of April 1897 and this decree was affirmed, on appeal, by this Court on the 8th of January 1900. On the 27th of April 1900 an application was made for an order absolute for sale Prag Dat, thereupon, applied under Section 108 of Act XIV of 1382 to have the decree set aside but his application was dismissed on the 22nd of September 1900 and on the same date the decree of the 30th of April 1897 was made absolute. Prag Dat applied for revision of this order but was unsuccessful. He then brought a suit to have the decree of the 30th of April 1897 set aside on the ground of fraud. That suit was dismissed and the dismissal was affirmed by this Court. In 190l Bhagwant and his sons made an application under Section 108 of the Code of Civil Procedure of 1882, to have the decree set aside. The application was granted on the 14th of December 1901 and the case was restored as against those persons. Prag Dat wished to file a written statement contesting the claim. His application to do so was refused and an application to this Court for revision of the order refusing to grant him permission to file a written statement was rejected. This Court in its judgment said that the decree as against the defendants, other than Bhagwant and his sons, was a binding decree and, therefore, Prag Dat could not be allowed to re-open the case. The case was heard and on the 22nd of September 1902 a decree was passed in the suit under Section 88 of the Transfer of Property Act. This decree was passed against all the defendants including Prag Dat and his son Raj want and the sons of Raj want. An appeal was preferred to this Court by Bhagwant and his sons, but their appeal was dismissed on the 19th of July 1905 in so far as the decree of the Court below directed the sale of the mortgaged property and that decree was affirmed. On the 7th of July 1906 an application was made for an order making the decree of the 22nd of September 1902 absolute, Prag Dat and his son Raj want and the sons of Raj want preferred objections but these objections were disallowed and an order absolute for sale was made on the 3rd of November 1906, and on the appeal of Prag Dat and others this order was affirmed by this Court on the 26th of February 1908. Subsequently to this, an application was made for amendment of the decree, dated the 22nd of September 1902. That application was dismissed by this Court on the 11th of December 1908. After having made all these unsuccessful efforts to thwart the appellant, Prag Dat, his son Rajwant and the sons of Rejwant brought the suit out of which this appeal has arisen for a declaration that they were no parties to the decree of the 22nd of September 1902 and the proceedings taken subsequently to the passing of the decree, namely, the order absolute for sale. They based their claim on two grounds, first that the said decree was obtained against them by fraud, and secondly that the Court exceeded its power in passing it against them, that is to say, that the Court had no jurisdiction to make the decree.
2. As to the allegation of fraud the Court below has held that the plaintiffs have failed to prove that any fraud was perpetrated by the defendant but the learned Subordinate Judge says in his judgment that though there was no fraud in fact 'legal fraud might be presumed.' We fail to understand what the learned Subordinate Judge means by this. But it is manifest from his finding, to which no exception has been taken by the respondents, that it has not been proved that any fraud was perpetrated on the plaintiffs.
3. The only other basis of the plaintiff's claim, therefore, is that the Court had no jurisdiction to pass the decree. It has been repeatedly held, and it is not denied by the learned Vakil for the respondents, that in a suit for sale upon a mortgage there can be but one decree for sale. The latest case in which this view was held is that of Gauri Sahai v. Ashfak Husain 29 A. 623 : A.W.N. (1907) 204 : 4 A.L.J. 552. Therefore, the decree which the Court finally passed in the cause, namely the decree of the 22nd of September 1902, was a proper decree for sale upon the mortgage of the 10th of June 1834. It is contended on behalf of the plaintiff that as the earlier decree of the 30th of April 1897, was not set aside on the application made by Prag Dat under Section 108 of the Code of Civil Procedure 1882, that decree must be held to have become final and must be deemed to be a subsisting decree, and the result, therefore, is that there are two decrees in the suit. We do not agree with this contention. As we have stated above, in a suit for sale upon a mortgage as also in a suit for foreclosure of a mortgage there can be but one decree, and that is the decree which was finally passed on the 22nd of September 1902. The Court had full jurisdiction to pass that decree and the effect of it was that the earlier decree of the 30th April 1897, was merged in it. Mr. Abdul Majid, the learned Counsel for the appellant, concedes that his client does not profess to hold two decrees against the respondents but only one decree, namely the final decree of the 22nd of September 1902. This decree, as we have already said, was made absolute as against the plaintiffs and the order making it absolute was affirmed by this Court on the appeal of the plaintiffs. We are, therefore, unable to hold that it is now open to the plaintiffs to bring this suit to have the decree of the 22nd of September 1902, set aside, which is in substance the object of the present suit. The learned Vakil for the appellant has referred us to the ruling of the Calcutta High Court in Jogeswar Atha v. Ganga Bishun Ghattack S.C.W.N. 473. In that case it was held that a suit could be brought to rectify a mistake in a decree. That is not the case here. This is not a suit to rectify a decree but to have declared that the decree is not binding on the plaintiffs. In our opinion the suit is not maintainable and the decree which was made on the 22nd of September 1902, and was subsequently made absolute on the 3rd of November 1906, is a decree properly made by a Court having jurisdiction to make it and is binding on the plaintiffs.
4. We accordingly allow the appeal, set aside the decree of the Court below and dismiss the plaintiff's suit with costs in both Courts including in this Court fees on the higher scale.