JUDGMENT - SHAH. J. :

The following genealogy shows the relation ship between plaintiffs Nos. 1 to 5 and Original defendants Nos. 10 to 15 who were subsequently transposed as plaintiffs Nos. 6 to 11.

JIWAJI DHERE (d.)

Ranba Laxman Subhana Nana

(d.) (d.) (d.) (d.)

Tukaram Sakharam Dadu Ganu Janu

(p. 1) (P- 2 (P- 3) (P. 4) (p. 5)

Yesba (d) Balu (d) Raghu (d)

Shiva Nana Govinda Shamu Hindu Sadu

(d. 10) (d. 11) (d. 12) (d. 13) (d. 14) (d. 15)

The dispute in this litigation relates to R. S. No. 48 of Ekundi which belonged to Jivaji who is shown as the common ancestor in the genealogy. Jivaji mortgaged the land with possession with Bhiwa Bayaji Patil on 4-6-1873 for Rs. 100. Suit No. 522 of 1930 was filed for redemption of the mortgage by the descendants of Jivaji in the Senior Jahagir-Munsiffs Court at Kagal in the former Kolhapur State. On 25-11-1933 a decree for possession was passed, and in Darkhast No. 434 of 1933 possession of the mortgaged land was obtained by the mortgagors. Thereafter Raghu son of Bhiwa filed Appeal No. 57 of 1934 in the Dis trict Court at Kolhapur and the decree passed was confirmed in appeal on 1-9-1936. Raghu then filed Second Appeal No. 70 of 1936. It is stated that Raghu died on 10-9-1939 during the pen dency of the appeal and the appeal was heard on 18-9-1939 without bringing his heirs on the re cord. The appeal was decided in favour of Raghu and the suit filed by the plaintiffs was ordered to be dismissed. The heirs and legal re presentatives of Raghu then filed Darkhast No. 165 of 1941 to execute the decree. It was stated in that application that Raghu died sometime after the High Court of Kolhapur decided Second Appeal No. 70 of 1936 and that the applicants were en titled to execute the decree. It appears that no objection was raised by the plaintiffs in the execution proceeding, that the decree under execution was a nullity, and the first defendant Dadu Raghu Patil obtained possession on 29-8-1943 in restitution proceedings. The plaintiffs then filed on 21-4-1951 Civil Suit No. 46 of 1951 against the heirs and legal representatives of Raghu and others for a decree for possession of the suit land from the defendants and for future mesne profits and costs of the suit. They claimed that they were illiterate and came to know of the death of Raghu recently and that the first defendant and his sons defendants Nos. 2 and 3 - were co-sharers and accordingly they were impleaded as party-defendants.

(2) The suit was resisted by the first defendant contending inter alia that his ancestors had become owners of the suit property by the decree passed in Second Appeal No. 70 of 1936, that it was untrue that Raghu died on 11-9-1939, that in any event the decree passed in Second Appeal No. 70 of 1936 was legal and valid, that after the decree was passed by the High Court an application was filed for leave to appeal to the Supreme Court of the Kolhapur State and therein affidavits were made that Raghu died after the decree in Second Appeal No. 70 of 1936 was passed and that the defendants had filed Darkhast No. 165 of 1941 and under an order passed in the execution proceedings possession was delivered on 29-8-1943 after hearing both the parties and so long as that decision in execution proceedings was not set aside the suit filed by the plaintiffs was not maintain able. The first defendant also contended that the suit was barred by the rule of res judicata and under S. 47 of the Civil Procedure Code and also by the law of limitation.

(3) The learned trial Judge on these pleadings raised the relevant issues and held that the decree in Second Appeal No. 70 of 1936 was a nullity, that the proceedings in Darkhast No. 165 of 1941 were vitiated by fraud and the proceeding was illegal and a nullity and that the plaintiffs contentions were barred as res judicata. He held that the suit w

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