S.K. CHATTOPADHYAYA, J:- This Second Appeal has been preferred by the defendants appellants challenging the concurrent findings of fact of the courts below. While admitting this appeal the following- substantial question of law was formulated:

"Whether it was incumbent upon the court below the hold enquiry under Order 32 Rule 14 in view of pleading of the parties and whether the judgments and the decrees are bad in law on account of non-compliance of the said provision."

2. In spite of valid service of notice Respondent No.1 did not put her appearance and Respondent nos. 2 to 6 being minors are represented by D. R. Guardian.

3. The facts' of the case lie in narrow compass Most. Bhuneshwari Kuer and others filed title suit no. 229 of 1962 for declaration of right, title and interest over the suit property. Plaintiff no. 2 Babu Paras Nath Singh, is her son who has been represented by his mother as his guardian and well wisher on the ground that he is off his head.

4. The defendants in their written statement contesting the claim of the plaintiffs, inter alia, have specifically stated in paragraphs 5 that " the suit is bad for defect of parties. The plaintiff no. 2 is major and is of sound mind and the suit cannot proceed on his behalf and through his alleged guardian as alleged in para no.6 of the plaint. The allegations made contrary to it in the plaint para no. 6 are wrong and incorrect." Similarly, in paragraph 6 of the written statement it has been stated that “the plaintiff no. 2 has been wrongly described and shown to be under the guardianship of defendant no. 1 in the copy of the plaint served on these defendants and the same is being filed along with this W.S. These defendants submit that the defendant no.1 is never his guardian".

5. On this plea being taken issue no. 4 was framed to the effect that "is the suit bad for defect of parties ?" While discussing this issue the trial court merely has taken note of deposition of D.W.15, who has said in his chief that the plaintiff no.2 was of sound mind. However, in his cross examination this witness admitted that he had never talked with Paras Nath Singh, plaintiff no.2, and, a as such the trial court has refused to believe the statement of defendant witness no. 15 by observing that he was not competent to say that Paras Nath Singh was of sound mind. Accordingly, he gave finding that the suit was not bad for defect of parties.

6. As the suit was decreed, the defendants challenged the same in Title Appeal No. 66 of 1969/28 of 1983. During pendency of the appeal, they filed a petition under Order 41 Rule 27 of the Code of Civil petition for admitting the plaint and written statement of Partition suit no. 32 of 1967/27 of 1964 filed by Paras Nath Singh against Ragho Singh and Others as additional evidence in appeal. This prayer was rejected on 11.1.1974 against which the defendant moved the High Court in Civil Revision No.101 of 1974. This Court by order dated 11th September, 1979 disposed of the Civil Revision application observing as follows;

"In my opinion the defendant is entitled to raise the applicability of Order 32 Rule 14 of the Code at the time of hearing of the appeal. In my opinion such point goes to the root of the filing of the suit. Hence in my opinion the impugned order will not cause any prejudice to the petitioner in raising the applicability of Order 32 Rule 15 of the Code. Hence in my opinion the defendant-Petitioner shall be entitled to raise the question of the applicability of Order 32 rule 15 of the Code at the time of hearing of the appeal.

7. From the aforesaid order it appears that this Court gave liberty to the appellants to raise the applicability of provision of Order 32 Rule 15 of the Code of the time of hearing at the appeal. Such question being raised, the appellate court noticing some reported decisions took the view that as because the defendant earlier did not raise any objection to this and went on contesting the suit on merit he cannot have