JUDGMENT

Tek Chand, J. - By two mortgage-deeds dated 8th May 1923, and 11th May 1920 Salig Ram and Sham Das mortgaged certain house property at Lahore with Dittu Mal and his son Chhajju Mal who was a minor at that time. On 8th April 1922 Dittu Mal acting for himself and as the guardian of his minor son Chhajju Mal executed a deed transferring these mortgagee rights to Bhai Amar Singh, appellant. On 2nd January 1921 Bhai Amar Singh instituted a suit for recovery of the money due to him on foot of the dead, dated 8th April 1922 and impleaded as defendants the original mortgagors Salig Ram and Sham Das and their mortgagees Dittu Mal and Chhajju Mal. In these proceedings Dittu Mal was originally shown as the guardian ad litem of his minor son Chhajju Mal. He however, refused to act and later on the ahlmad of the Court was appointed as his guardian ad litem. On 28th August 1927 a preliminary decree was passed in favour of Bhai Amar Singh recoverable from the house property mortgaged. Against this preliminary decree an appeal was preferred to the District Judge by Dittu Mal and by his son Chhajju Mal through the ahlmad of the Court of Bawa Jhanda Singh who had been appointed as guardian ad litem in the Court below, and Mr. Jai Gopal Sethi, advocate, was engaged to argue this appeal on behalf of both appellants. Among the grounds urged before the learned District Judge was the non-liability of the minor Chhajju Mal on foot of the mortgage-deed which purported to have been executed by Dittu Mal for himself and his minor son Chhajju Mal. On 24th January 1925 the learned District Judge, Mr. Rangi Lal, affirmed the preliminary decree passed by Bawa Jhanda Singh against all the defendants including Chhajju Mal minor with a slight modification which is not material for the dispute now before me.

2. Shortly afterwards, on 16th June 1925 Chhajju Mal who had by this time become a major instituted a suit for a declaration that the preliminary decree passed against him by Bawa Jhanda Singh on 28th August 1924 had been fraudulently obtained and was not binding on him. This suit was dismissed on 21st August 1925 on the ground that the preliminary decree passed by Bawa Jhanda Singh had merged in the decree passed by Mr. Rangi Lal and that, therefore, no suit was competent to have that decree set aside. An appeal against this decision filed by Chhajju Mal was also unsuccessful.

3. The decree-holder then took proceedings to have the preliminary decree made final. Chhajju Mal filed a number of objections against the decree being made final, pleading, inter alia, that the preliminary decree had been passed against him in proceedings in which he was not properly represented and that his father had been colluding with the decree-holder. These objections were heard and overruled by Mr. Muhammad Akbar, Subordinate Judge, on 12th November 1925 it being held that such objections could not be taken in proceedings to have the preliminary decree made final but that the remedy of Chhajju Mal (if any), was by way of a suit. A final decree was accordingly passed against all the judgment-debtors including Chhajju Mal on 12th November 1925. No appeal was filed by Chhajju Mal against this decree.

4. The decree-holder then started proceedings to execute his decree with a view to realize the amount that had been found due to him and prayed for sale of the mortgaged property. But before much progress could be made in those proceedings Chhajju Mal instituted another suit on 18th March 1926 giving the history of the previous litigation and praying that a:

declaratory decree may be granted in his favour against the defendants holding that whatever proceedings have been taken on the application dated 1st January 1926 in execution, on the basis of preliminary and final decrees are null and void and ineffectual on the rights of the plaintiffs and the person and property of the minor are not liable for the payment of the decree in file No. 5/1924.

5. It will be seen that the prayer