1. This appeal is against the decision of the Subordinate Judge of Narasapur in a suit for a declaration that the order in Execution Petition No. 827 of 1920 in the Additional District Munsif's Court of Bhimavaram and the proceedings consequent are not binding on the plaintiffs, and for other consequential reliefs.
2. The 1st plaintiff is the father of plaintiffs 2 to 5. The 1st defendant sued the plaintiffs for certain property with mesne profits in Original Suit No. 319 of 1917 on the file of the Additional District Munsif's Court, Bhimavaram, and got a decree for delivery with past mesne profits at Rs. 250 per annum and future mesne profits at the same rate. The decree was appealed against by the plaintiffs and the judgment of the Appeal Court in A. S. No. 147 of 1919, Temporary Sub-Court, Masuli-patam, is the final judgment in that suit. The Appear Court confirmed the decree for delivery and past mesne profits, but directed that future mesne profits should be determined in execution. The 1st defendant accordingly brought Execution Petition No. 827 of 1920, dated 20th October, 1920, for the purpose of determining future mesne profits. The 3rd plaintiff who was a minor during the trial of the suit had then attained majority, but still remained on record as a minor; and he and plaintiffs 4 and 5, also minors, were represented in the execution petition by the 1st plaintiff, their father and guardian ad litem. He and 2nd plaintiff allowed the execution petition to be decreed ex. parte, and the order passed on the execution petition was that the 1st defendant do recover mesne profits at the rate of Rs. 857-8-0 per annum with interest at 12 per cent. per annum. Plaintiffs 3 to 5 here plead that this order is not binding on. them, because it was obtained owing to the gross negligence of their guardian ad litem in allowing the proceedings to be adjudged ex parte. Plaintiffs 1 and 2 contend that the decree in the execution petition was obtained by fraud and consequently is not binding upon them. They also maintain that, since it; is not binding on plaintiffs 3 to 5, it cannot be enforced against them, i.e., plaintiffs 1 and 2, either, all being members of one joint family. The Lower Court has held that the minors' interests were grossly prejudiced by the negligence of the guardian and has given the declaration sought for in the plaint and has decided that a fresh inquiry should be held into the amount of future mesne profits. As regards plaintiffs 1 and 2, it has decided that the order in the execution petition is not binding upon them either. Defendants 1, 2, 6 and 7 appeal.
3. In the execution proceedings the plaintiffs appeared by a pleader and filed a counter, and the petition stood posted for hearing from 2nd May, 1921 to 22nd June, 1921. Between these two dates their pleader died. On the 22nd June, 1921, none of the plaintiffs appeared. Some one it is not clear who or on whose behalf asked for a week's adjournment and that was granted. On the 29th June, 1921, the plaintiffs again put in no appearance and the petition was ordered ex parte. The fraud alleged by the plaintiffs, set out at some length in paragraph 7 of the plaint, where it is not merely a plea of negligence on the part of plaintiffs 1 and 2, is merely to the effect that the 1st defendant took an unfair advantage of the fact of their pleader's death and the illness of plaintiffs 1 and 2 in order to obtain the ex parte order. No evidence of fraud is adduced and the plea has not been proved here. It is embodied in issue No. 1. The substantial point for determination is issue No. 2, 'Whether the interest of the minors suffered from any gross negligence on the part of the guardian'. That the guardian was grossly negligent is obvious. It is not very clear whether the guardian appeared in Court on 2nd May, 1921. The Subordinate Judge says he did appear, but the evidence of the 2nd plaintiff seems to indicate that he did not. If he did, he must have been aware personally of the adjourned date of hearing and ought to have: appeared then. If he did not, he was negligent in not appearing even on that date to instruct his pleader and to conduct the case. He did not appear on 22nd June, 1921 and merely pleads a vague illness of which there is no satisfactory proof. Obviously he was entirely negligent in the minors' interest. This was also the finding of both the Courts which had to deal with an application by him to set aside the ex parte order. (Sec Exs. IV-a and IV-b.)
4. However, gross negligence is not in itself a legal ground for setting aside a decree or order. It has further to be shown that the interests of the minors were thereby gravely prejudiced;' in other words, they had a prima facie good case to put for ward which, owing to the negligence of their guardian, was not advanced before the Court. On this point also we have, on the facts, no doubt. The 1st defendant's claim for mesne-profits in his possession suit was for Rs. 535 per annum both for past and for future years. (See Ex. A.) The Trial Court in that suit decreed past and future mesne profits at Rs. 250 per annum. Now, although the present plaintiffs appealed against the decree, the 1st defendant, the plaintiff in that case, put in no memorandum of cross-objections against the figure decreed and filed no appeal of his own. He was thus apparently quite satisfied with the amount of mesne profits decreed at Rs. 250 per annum for future years; and if the present plaintiff had not appealed, the 1st defendant would have got no more than that figure. It was on the present plaintiff's case in appeal that the mesne profits awarded were too high that the Appellate Court directed the amount to be determined in execution. In execution, as has been noted, the 1st defendant obtained an ex parte order for mesne profits at the rate of Rs. 857-8-0 per annum which is a much higher figure than he had even claimed in his possession suit and is more than three times the figure with which he was satisfied when it was awarded him by the decree of the Trial Court. We cannot doubt that, if these facts had been brought before the Judge trying the execution petition, he would have felt bound to regard them as extremely important points to be considered before he arrived at his decision. From these facts alone we are constrained to are with the Lower Court that the interests of the minors have been gravely prejudiced by the gross negligence of their guardian.
5. It is argued for the appellants that the actual evidence produced now as to mesne profits is vague and inconclusive and does not amount to proof that the demand of Rs. 857-8-0 is exorbitant and that the Lower Court has not recorded any finding that it was so. But we do not think it necessary to pronounce on the character of. the evidence now. What the minors have to establish is that there was a prima facie good defence which was not put forward owing to the neglect of their guardian; and the fact that the 1st defendant had not even in his suit estimated the mesne profits at as high a figure as he has now been awarded and that he himself was previously satisfied with the figure of Rs. 250 is in itself a prima facie good defence. It is better not to pre-judge the fresh inquiry by a decision now as. to whether the figure of Rs. 857-8-0 is or is not exorbitant. Neither side has evidently put forward its full case yet. In particular, the evidence about the price of paddy for the years in question is defective on both sides. We are, therefore, not prepared to interfere with the decree of the Lower Court so far as the minors are concerned.
6. The next question is on issues 3 and 5, whether on that finding it should follow that the order in execution has to be set aside against the adult plaintiffs also. In the absence, as we have held, of proof of fraud, they are, of course, prima facie bound by the order in execution, as it is res judicata. But there are cases in which a Court setting aside a decree or order in part is constrained by the logic of circumstances to set it aside in toto; and the necessity for this in certain cases is recognised by the Code of Civil Procedure in Order 9, Rule 13 and Order 41, Rule 33. Neither of these rules applies directly to the present case as it stood before the Trial Court. But that Court has applied the principles of these rules and set aside the execution order as a whole on the ground that the amount of liability of the adult plaintiffs cannot be separated from, and cannot be different from, that of the minors. The argument seems to us to be a sound one and is based on the principle accepted by this Court in Valia Panga Achan v. Marupha Veera Kavun-dan I.L.R. (1908) M. 454 and Ramalingam Chettiar v. Subramatnia Chettiar I.L.R. (1927) M. 614 : 52 M.L.J. 612 and set out by the Privy Council in Venkata Row v. Tuljaram Row (1921) L.R. 43 IndAp 91 : I.L.R. 45 M. 298 : 43 M.L.J. 298 (P.C.) and by a Bench of the Calcutta High Court in Jadubansa Narain v. Mohunt Hari Charan Bharati (1907) 6 C.L.J. 226. The original suit for possession and mesne profits was framed against the joint family of the plaintiffs as such. The figure of mesne profits then is the cash value of the annual profit which the joint family might reasonably have made duning their possession; and, from that point of view, the amount must be a fixed figure for each member of it. It is impossible for this Court to hold in one and the same proceeding that the amount of profits made by the joint family is both, say, Rs. 250 and Rs. 857 per annum. The joint' liability for mesne profits of all the plaintiffs is one and indivisible, and the decree against all the plaintiffs is based on a common ground. Each member of the joint family is entitled to claim that the amount payable by the joint family shall not be more than is payable by every member of it. It: is thus impossible to do justice to the minor members of the joint family sunless we re-open the matter of the whole liability of the joint family, that is, of the adult; members also. In this view the Lower Court's decree on this point also is correct. We see no reason to interfere and dismiss this appeal with costs of respondents 1 to 5.
7. The note attached to the decree of the Lower Court will stand as part of the decree. Pleader's fee Rs. 200.s