Raghava Rao, J.-The suit out of which this appeal arises was instituted by respondents 1 to 6 before us in the Court of the Subordinate Judge of South Kanara for a declaration that the decree obtained by the appellant against the family of themselves and respondents 7 to 9 and 19 in O.S. No. 387 of 1936 on the file of the Court of the District Munsif of Mangalore did not bind them. That was a suit filed by the appellant as releasee of the suit properties from the auction purchaser thereof in execution of the decree in O.S. No. 39 of 1928, Sub-Court, South Kanara at Mangalore, which had been obtained on the basis of a mortgage effected by the present fifth defendant, by the father of the present defendants 6 to 9 and by the father of the present defendants 10 to 12, who together with their sons and the 13th defendant, their step-brother were the mulgars of the suit properties. The defendants in O.S. No. 387 of 1936 who contested it by filing a written statement were the mulgeni tenants, i.e., the present defendants 2 to 4 who were the heads of the three branches of the undivided Aliyasanthana family of which the plaintiffs of the present suit are the junior members. The appellant filed the suit (O.S. No. 387 of 1936, District Munsif Court, Mangalore) for arrears of rent and possession of the properties comprised in the present plaint A and B schedules asserting, as is said by the present plaintiffs, falsely and fraudulently that she was entitled to the entire mulgeni rental, although a portion thereof had been dedicated to Devata Viniyogas at the partition in the family of the Bulgars, that the present plaint B schedule properties in addition to the present plaint A schedule properties formed part and parcel of the mulgeni holdings and that the mulgeni lease had become forfeited for non-payment of the rent due. It is also alleged by the present plaintiffs in their plaint that the appellant, fraudulently managed to secure the collusion of defendants 2 to 4 and 14 and obtained a decree ex parte. Although defendants 2 to 4 had filed their written statements in answer to the action, their vakil, Mr. G. Somasekhara Rao reported no instructions, when the cause came on for hearing. Defendants 2 to 4 were set ex parte, and a decree was passed, which is the subjectmatter of challenge in the present suit, which is, as may be expected, resisted by the first defendant on the ground that there was no fraud or collusion about the former decree obtained against the heads of the family. The Additional Subordinate Judge who tried the cause in the Court below granted a decree to the plaintiffs against which the first defendant has preferred this appeal.

It falls to be observed at the outset that there are no details of fraud or collusion given in the plaint and that the decree passed by the learned Subordinate Judge is not based on any finding of fraud or collusion, as alleged in the plaint however, vaguely, so much as in a finding of gross negligence on the part of defendants 2 to 4 in remaining ex parte at the time of trial of O.S. No. 387 of 1936, District Munsif Court, Mangalore, after and although they had raised various defences in their written statement. The learned Subordinate Judge has in a very exhaustive judgment scrutinised in detail the merits of all the pleas raised in the written statement in the former suit in the light of the evidence now adduced and has upheld them all as valid pleas in fact which should have resulted in a non-suit of the plaintiff in the former action but for the gross negligence of defendants 2 to 4. The raison d’etre of the decision of the learned Subordinate Judge is contained in three short paragraphs of his long judgment paragraphs 37, 41 and 42 which may be here reproduced:

"By reason of the conduct of defendants 2 to 4 in the prior suit the family of the parties have been gravely prejudiced. A decree was allowed to be passed for amounts which were not due to the first defendant. The first defenda