JUDGMENT
Holmwood, J.
1. These second appeals arise out of suits brought by the plaintiffs to set aside certain mortgage-decrees and sales held in accordance therewith, on the ground that they were tainted with fraud and that they were illegal and the sales were equally so, and that decrees which purported to be against their father did not bind the plaintiffs.
2. It is conceded that at the time the decrees were passed the plaintiffs were not in existence and, therefore, had no cause of action as regards setting aside the decrees. But the prayers of their plaint show that this is the main ground of their case, the sales being merely subsidiary. The first prayer clumps the decrees and sales together. The second is clearly based on the contention that the decrees being illegal, the sales held under them must also be illegal. On the plaint itself there seem to be many grounds on which the suit is not maintainable. The first we have already stated, thai the plaintiffs were not alive at the time the decrees were passed. The second has been stated by the learned Subordinate Judge and not noticed by the Judge in appeal except in general agreement, namely, that on paragraphs 4, 5, 6 and 7 of the plaint it must be held that the reconveyance of the shares of Bhabhutar and Ganput, whom the plaintiffs claim to represent by means of the hiba-bil-ewaz, made the properties the self-acquired properties of Bhabhutar and Ganput and if it ever was ancestral property, which does not seem to be asserted, it ceased to be so. Then there is the ground taken in paragraph 4 of the written statement that the plaintiffs have not specifically mentioned any instance of fraud in their plaint. In dealing with this the learned Judge in the Court below has pointed out that the only allegation in regard to the decree is contained in paragraph 9, and on analysing that in the light of the fact that the plaintiffs were not in existence, he found that that refers to gome parties who are not before the Court and it is not known who they are, so that there is substantially no allegation of fraud against the decree which was obtained after contest and which was never contested in execution by the plaintiffs’ ancestor. If, therefore, the plaintiffs had no interest in the property at the time the decree was passed and the property was not ancestral property, it is difficult to see how they can seek to come in in execution.
3. It is argued on the authority of the case to which one of us was a party, the case of Debendra Nath Bhattacharjee v. Prasanna Kumar Chakravarti 6 C.L.J. 328 that they can bring this suit on the basis of the alleged frauds in execution only, and that whether it be treated as an application under Section 47 or as a regular suit is a matter of form and not of substance, as was pointed out in that case. In a passage at the end of the judgment which is obiter it was laid down, if there was fraud in the execution proceedings it will be open to the party affected by the fraud to make an application under Section 244, Civil Procedure Code; if instead of an application he presents a plaint in the Court competent to deal with the matter, the defect is one of form rather than of substance and there is no real want of jurisdiction, and this is supported by a large number of authorities, and we have no desire to differ from it in any way, as it has nothing to do with the present case which is based essentially upon the prayer to set aside the decree. As the plaintiffs were not interested in the decree they cannot now come in in execution and that alone is sufficient to show that their suit is not maintainable.
4. The appeals are, therefore, dismissed with costs.
Walmsley, J.
5. I agree that the appeals should be dismissed.
