JUDGMENT

1. In this case the original plaintiff Kasimji Adamji, whose heirs are now the plaintiffs on the record, sued for a declaration that the decree in Suit No. 188 of 1899 in the Court of the fourth Munsif of Howrah and the execution proceedings resulting on that decree should be set aside as fraudulent, and the plaintiff confirmed in possession of the land described in the schedule to the plaint. The sole question arising in this second appeal is whether the present suit is barred by reason of an order u/s 108 of the CPC of 1882 dismissing an application of the present plaintiff to set aside the ex parte decree in Suit No. 188 of 1899. The Court of first instance found that there was no fraud on the part of defendant No. 1 in obtaining the ex parte decree, and that no payment was made to the defendant No, 2, as alleged, for the purpose of getting the suit withdrawn. As to the execution proceedings, that Court was of opinion that no fraud had been established. It also found that the plaintiffs' predecessor-in-title knew of the auction-sale and of the possession being delivered to the defendants before the date when it was alleged that that fraud had become known to him, and it