JUDGMENT
1. Kunjan and his nephew, Basawan, mortgaged certain land in 1886 and 1892. Nath mortgages came to be vested in one Nakchhedi Pande. In 1898, Basawan, alone, mortgaged the property to Ram Lagan, the father of the present defendants first party. Ram Lagan brought a suit on his mortgage against his mortgagor, Basawan and the holder of the prior mortgages, Nakcheddi, and obtained a decree nisi in July 1905. That decree required him to redeem the prior mortgages. After redeeming them, Ram Lagan obtained an order absolute for sale and in August 1908, the mortgaged property was sold. In July 1910, Ram Lagan applied under Order XXXIV, Rule 6, Civil Procedure Code, for a mo money-decree against Basawan and against Parmeshwar, Bhusi, Ujajar and Bhaunath, the four sons of Kunjan, one of the mortgagors of 1886 and 1892. Notices were issued on this application. Notice was served personally on Bhusi and as regards two of the others the peon reported that on hearing of the notice, they concealed themselves in their house. It is not quite clear what occurred with regard to Bhaunath, the fourth son of Kunjan, i.e., whether the peon reported that he had concealed himself in the house or that he had been personally served As will appear presently, it is unnecessary to decide this question. The notices were returned to the Court and a decree was passed under Order XXXIV, Rule 6, against Basawan and the four sons of Kunjan. In execution of that decree, some property belonging to the sons of Kunjan was attached and sold. An objection to the sale having been thrown out, the present suit was instituted by Parmeshwar and Ujagar against the sons of Rim Lagan and Basawan and the plaintiffs made their two brothers, Bhusi and Bhaunath, pro forma defendants. Subsequently, Bhaunath was made a plaintiff. The case of the plaintiff was that Ram Lagan had obtained the decree under Order XXOV, Rule 6, without their knowledge and they called those proceedings a fraud. They asked that the sale should be set aside. The Courts below have held that Ram. Lagan was guilty of fraud in concealing the fact that the plaintiffs and their brothers were not mortgagors and they have found also that the notice to Bhaunath was not served upon him, but upon some one else, as he had been living at Calcutta for a considerable time when the notice readied his village. In the case of Puran Chand v. Sheo Dut Rai 29 A. 212 : A.W.N. (1907) 31 : 4 A.L.J. 51 it was held that a suit did not lie to set aside a decree on the ground of fraud, the sole fraud alleged being in respect of the service of summons. In that case, the plaintiffs had applied to have the decree against them set aside on the ground of some fraud in respect of the service of the summons on them. The application had been rejected after inquiry and this Court held that a separate suit did hot lie on that same ground. In the present case, the plaintiffs applied under Order IX, Rule 13, Civil Procedure Code, bat they failed to appear at the hearing and (heir application was thrown out and they made no attempt to have it restored to the pending file. They brought this suit instead. It seems to us that, according to the decision of this Court just quoted, this suit is not maintainable on the ground that the notices in the previous suit were not served on the plaintiffs or were served on persons other than the plaintiffs. If the Suit is maintainable at all, it must be on the ground of fraud. It is not even suggested that Ram Lagan caused the process-server to make a false report or serve the wrong person. The only possible ground on which it can be suggested that the suit can be maintained is that Ram Lagan, when applying for a decree under Order XXXIV, Rule 6, did not inform the Court that four of the persons against whom he was applying were not mortgagors. Regard being had to the facts, it is conceivable that Ram Lagan may have supposed himself to be entitled to a decree against the heirs of Kunjan, for Kunjan had made the mortgages which Ram Lagan had been compelled to redeem. His action was not necessarily fraudulent and if the plaintiffs and their brothers, considered that the application was out of order, they should have resisted it. We cannot hold that the action of Ram Lagan was fraudulent. We allow the appeal, set aside the decrees of the Courts below and dismiss the suit with costs including fees in this Court on the higher scale.