1. This appeal arises out of a suit by the plaintiffs Nos. 1 to 5 to recover possession of some plots of land. The plaintiffs Nos. 1, 2 and 3 are tl..e sons and the plaintiffs Nos. 4 and 5 are the daughters of one Nasir Mahomed. The defendant No. 1 purchased the property at a sale in execution of a decree passed on a mortgage executed in his favour by one Jabid Ali. It appears that the plaintiffs Nos. 1, 2 and 3 were parties to the mortgage decree. The plaintiffs alleged that the property belonged to Nasir Mahomed, and that, as heirs of Nasir Mahomed, they are entitled to recover possession. The defendant No. 1 alleged that the property belonged to Jabid Ali, and that, as purchaser of the interest of Jabid Ali in the property, he is entitled to remain in possession, and that at any rate, the plaintiffs Nos. 1, 2 and 3 are bound by the mortgage-decree and are not entitled to recover possession from him. These allegations raised two cardinal points, first, how far were the plaintiffs Nos. 1, 2 and 3 bound by the mortgage-decree, and secondly, whether the plaintiffs had established the title of Nasir Mahomed to the property.
2. As regards the first, the Courts below have held that notwithstanding the fact that the plaintiffs Nos. 1, 2 and 3 were parties to the mortgage-decree, they are not bound by it, because the defendant No. 1 has failed to prove that the summonses, sale proclamation etc., were served on these plaintiffs.
3. With regard to the second question, both the Courts below have held that the plaintiffs have succeeded in establishing that 8, out of the 15 plots claimed in the suit, belonged to Nasir Mahomed.
4. We are of opinion that the finding of the Court below on the first question is not sufficient to entitle the plaintiff to maintain the suit. It is true that the mortgage-decree was ex parte as against the plaintiffs Nos. 1 to 3. But notwithstanding this, it was not open to them to challenge it in an, independent action on the ground that the summonses were not served on them. Their remedy, if they wished to set aside the ex parte decree on that ground, was by an application under Section 108, Civil Procedure Code, 1882. They cannot have that decree set aside in an independent action, except by establishing that the decree was obtained by fraud. See the cases of Abdul Muzamdar v. Mahomed Gazi Ghowdhry 21 C. 605. ; Rudha Raman Shaha v. Pran Nath Roy 28 C. 475; Khagendra Nath Mahata v. Pran Nath Roy 29 C 395; Dwarka Prasad v. Lachhoman Das 21 A. 279.
5. It was necessary, therefore, before giving the plaintiffs a decree, to come to a finding as to whether the mortgage-decree was obtained against them by fraud on the part of the defendant No. 1. The plaintiffs Nos. 4 and 5 were, however, no parties to the previous mortgage-decree. They are, therefore, unaffected by it and are entitled to succeed in the present action if they succeed in proving that they were in possession of the property within 12 years prior to the suit. The plaintiffs Nos. 1, 2 and 3 must also establish that they were in possession within 12 years prior to the suit.
6. The first Court overruled the plea of limitation on the ground that the evidence of possession adduced by the defendant was not reliable. The lower appellate Court, however, has come to no distinct finding on the point. It is necessary that it should come to a distinct finding on the question of possession both as regards the plaintiffs Nos. 1, 2 and 3 and also as regards the plaintiffs Nos. 4 and 5.
7. The case must, therefore, go back to the lower appellate Court for a finding on the evidence, if any, on the record on each of the two following points:
(1) Whether the ex parte mortgage-decree was obtained by defendant No. 1 by fraud and (2) whether the plaintiffs No. 1 to 5 were in possession of the 8 plots mentioned in the decree of the lower appellate Court within 12 years prior to the suit. The findings should be returned to this Court as early as may be convenient. The question of costs will be decided at the final hearing.
8. As regards Appeal No. 704, it must stand over until the arrival of the findings called for in Appeal No. 676.