Dave, J.—This is a first appeal by the plaintiffs against the judgment and decree of the District Judge, Bikaner, dated the 23rd of April 1952.

2. The plaintiffs-appellants Tolaram and Kashiram are sons of the defendant-respondents No. 3 Kaluram. It is common ground between the parties that on the 23rd of May, 1932, the appellants father executed a mortgage-deed in favour of the defendants-respondents Nos. 1 and 2, Beenjraj, and Nemichand for Rs. 1,000/- in respect of a house which is situated in Dungargarh and which is the subject of dispute in the present case, Respondents Nos. 1 and 2 latter on filed a suit against respondent No, 3 on the basis of the said mortgage-deed and obtained a final decree for the sale of that property, on 5th of November 1948. In execution of that decree, a proclamation for sale was made by the executing court and 16th to 18th June, 1950, were fixed for the auction of that property. After this proclamation was issued, the appellants brought the present suit on the 13th of May, 1950, for a declaration that the said decree was void and inoperative against them and the mortgaged property was not liable to be sold in execution thereof. It was averred by the plaintiffs that the house in dispute was their ancestral property since its patta was in the name of the appellants grand-father and, therefore, their father defendant No.3, had no right to mortgage the same in the absence of any legal necessity. It was further averred that there was no antecedent debt of the family to be paid off, that no benefit had accrued to the family from the money which was borrowed by defendant No. 3. It was also pleaded on the other hand that the money was borrowed by defendant No.3 for immoral and illegal purposes and, therefore, it was not binding on them.

3. The suit was resisted by defendants Nos. 1 and 2 on several grounds which led the trial court to frame the following five issue:—

(1) Is the haveli in question the joint ancestral property of the plaintiffs and defendant No. 3. P,

(2) Did defendant No. 3 mortgage this haveli with the defendants Nos. 1 and 2 for immoral and illegal purpose? P.

(3) Was the decree dated 5-11-1948 obtain-ed by defendants Nos. 1 and 2 against defendant No. 3 by collusion with defendant No. 3 and so it is void and ineffective as against the plaintiffs and so the property was not liable to sale? P.

(4) Is the suit not within time? D.

(5) Are the plaintiffs estopped from bringing the present suit? D.

4. Of these issues Nos. 4 and 5 were not pressed by the defendants in the trial court and, therefore, they were decided against them. Similarly, the plaintiffs failed to produce any evidence on issue No. 3 and, therefore it was decided against them. Issue No.1 was decided by the trial court in the plaintiffs favour and its correctness has not been questioned before us at the time of arguments. The main discussion in the trial court centred round issue No. 2 which was decided by that court against the appellants. It was found by the trial court that the defendants Nos. 1 and 2 had advanced a loan of Rs. 10,000/- to the defendant No. 3, that out of this amount, Rs 4,000/- were paid by the defendant No. 3 to defendants Nos. 1 & 2 themselves towards the repayment of a loan which he had obtained earlier from them, and that the remaining amount of Rs. 6000/- was obtained by defendant No. 3 to pay off other debts. It was further found by that court that the defendants had made proper enquires about the necessity of the loan. The plaintiffs suit was, therefore, dismissed with costs. Against this decision, the present appeal came for hearing before this Court on the 9th of November 1953. At that time, it was contended by the appellants learned advocate that the trial court had failed to frame an issue regarding legal necessity and, therefore, they were prejudiced in the trial. It was held by the Court that issue No. 2 was not properly framed and, therefore, the following two issues were framed and the case was r

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