JUDGMENT Rampini, J. - The facts of this case are as follows: The village of Deoli in Manbhum belonged to one Hira Chand. In 1899 he mortgaged it to one Mr. Rooke. After the death of Hira Chand, his son Nilmoni, his successor in interest, sold a 9 as share of his mokurari interest to the Defendants Nos. 1 and 2, the Malias. Nilmoni then died. According to the plaint he died in 1891, according to the evidence given in the suit he died in 1886 or 1887. The heirs of Nilmoni were his two sisters' sons, Lakshmi-narain, the Defendant No. 7, and Ram Taran Goswami, the present Plaintiff. The former lived in Manbhum. The Plaintiff resided in the District of Bankura. Mr. Rooke was not aware of the Plaintiff's existence or of his being one of Nilmoni's heirs. He accordingly, when he sued to enforce his mortgage on the village Deoli, made the Defendant No. 7 only a party Defendant. He obtained a decree, put the property up to sale, and it was sold on the 14th July 1892 to the Defendants Nos. 1 and 2. The sale was confirmed on the 14th August 1892. Now the Plaintiff brings this suit on the 13th July 1904, that is, about 11 years, 11 months and odd days after the confirmation of sale to establish his right to a share of the property, to have it declared that all the proceedings referred to above are null and void as against him, and that he is entitled to redeem his share. The Judicial Commissioner has dismissed the suit holding in the alternative that the Defendant No. 7 had either a good title to the land by adverse possession which he held ever since the time of Nilmoni's death or else that the Plaintiff having allowed the Defendant No. 7 all these years to deal with the property as his own is estopped from pleading or showing that the ostensible is not the real owner of the property. 2. The Plaintiff now appeals. On his behalf it has been urged: (1) That he is not bound by the mortgage decree. (2) That he is not bound by the sale. (3) That he is still entitled to redeem; and (4) That the Defendants Nos. 2. The Plaintiff now appeals. On his behalf it has been urged: (1) That he is not bound by the mortgage decree. (2) That he is not bound by the sale. (3) That he is still entitled to redeem; and (4) That the Defendants Nos. 1 and 2 being co-sharers in the mokurari interest cannot claim to be bond fide, purchasers without notice of the Plaintiff's rights. In support of the first three of these pleas, the Appellant's learned pleader states that the Plaintiff was a minor at the time of the decree and sale. At the time he gave his deposition in this gait, viz., in 1905, he was 25 years of age, so he must have attained his majority in 1898 when he was 18. Hence it is contended his suit is not barred by 12 years' adverse possession or estoppel. In support of his last plea, the pleader for the Appellant relies on the fact that the Defendants Nos. 1 and 2 were co-sharers in the mokurari and he asks us to infer, what the lower Courts were not asked to do nor did, that the Defendants who reside in Burdwan well knew that the Plaintiff lived in Bankura and was one of the heirs of Nilmoni. In reply Dr. Rash Behari Ghose relies on the cases of Ham Nath Rai v. Lachman Rai I. L. R. 21 All. 194 (1899), Lala Suraj Prosad v. Gulab Chand I. L. R. 28 Cal. 517 (1901) and Shivram v. Genu I. L. R. 6 Bom. 515 (1882), as showing that as the mortgagee had no notice of the existence or of the rights of the Plaintiff, he was not bound under sec. 85 of the Transfer of Property Act to make him a party to his foreclosure suit and that the decree he obtained therefore binds the minor, and (2) that in the foreclosure proceedings the estate of Nilmoni was sufficiently represented by Lakshminarain. In support of the latter argument Dr. Ghosh cites the cases of Prosunno Chander Bhattacharjee v. Kristo Chytunno Pal I. L. R. 4 Cal. 342 (1878), Janaki v. Dhanu Lall I. L. R. 14 Mad. 454 (1891), and a passage in the judgment of their Lordships of the Privy Council in Khiarajmal v. Diam 9 C. W. N. 201: s. C. I. L. R. 32 Cal. 296; L. R. 32 I. A. 23 (1904). 3. 342 (1878), Janaki v. Dhanu Lall I. L. R. 14 Mad. 454 (1891), and a passage in the judgment of their Lordships of the Privy Council in Khiarajmal v. Diam 9 C. W. N. 201: s. C. I. L. R. 32 Cal. 296; L. R. 32 I. A. 23 (1904). 3. On the other hand, the learned pleader for the Appellant cites as contrary authorities to the cases relied on by the Respondents' pleader the cases of Assamathem Nissa Bibi v. Boy Lutchimiput Singh I. L. R. 4 Cal. 142 (1878), Jafri Begam v. Amir Muhammad Khan I. L. R. 7 All. 822 (1885) and Lutchmiput Singh v. Land Mortgage Bank of India I. L. R. 14 Cal. 464 (1887) and in reply to the Respondents' pleader's second argument he contends that the Malia Defendants, being co-sharers, and hence, he urges, necessarily aware of the Plaintiff's existence and rights, cannot claim to be purchasers for value without notice, and therefore are not entitled to the benefit of the doctrine alluded to by their Lordships of the Privy Council in Khiarajmal v. Diam 9 C. W. N. 201: s. C. I. L. R. 32 Cal. 296; L. R. 32 I. A. 23 (1904), viz., that "the Indian Courts have properly exercised a wise discretion in allowing the estate of a deceased debtor to be represented by one member of the family and in refusing to disturb judicial sales on the mere ground that some members of the family who were minors were not made parties to the proceedings, if it appears that there was a debt justly due to the deceased and no prejudice is shewn to the absent minors." 4. On the whole, I think the arguments of the learned pleader for the Respondents must prevail. Sec. 85 of the Transfer of Property Act only provides that the mortgagor must join in his suit all persons interested in the property comprised in the mortgage, provided he has notice of such interests. It is beyond doubt that Mr. Rooke, the mortgagee, had no notice that the present Plaintiff had an interest in the property comprised in his mortgage and for this reason only he did not make him a party to his suit. The cases of Ram Nath Rai v. Lachmam Rai I. L. R. 21 All. 194 (1899), Shivram v. Genu I. L. R. 6 Bom. Rooke, the mortgagee, had no notice that the present Plaintiff had an interest in the property comprised in his mortgage and for this reason only he did not make him a party to his suit. The cases of Ram Nath Rai v. Lachmam Rai I. L. R. 21 All. 194 (1899), Shivram v. Genu I. L. R. 6 Bom. 515 (1882) and Lala Suraj Prosad v. Golab Chand, I. L. R. 28 Cal. 517 (1901), apparently lay down that in such a case, the right of the person not made a party to the mortgage suit is bound by the decree and his interest will pass at the sale held in execution of this decree. 5. The cases relied on by learned pleader for the Appellant are not, I think, sufficient authorities for holding the contrary. In Assamathem Nissa Bibi v. Roy Lutchmiput Singh I. L. R. 4 Cal. 142 (1878), the mortgagee was well aware of the existence of the heir not made a party to the suit. In Garth, C. J.'s judgment it is said: "The Plaintiffs in the suit knew perfectly well that she (Sadarunnissa) was entitled to a share and they had reason to believe that she was alive at Medina. A decree was then passed in that suit not adversely to the Defendant or in the usual course of proof and procedure, but by consent, a decree by no means of an ordinary character and which the Court except by consent would clearly not have been justified in making." The case of Jafri Begam v. Amir Muhammad Khan I. L. R. 7 All. 822 (1885) by the decree in which the right of the Plaintiff was held not to pass, was not a mortgage decree. It was a decree for debt. The provisions of sec. 85 of the Transfer of Property Act did not apply. There was no question of knowledge of the Plaintiff's interest, of which, in any case, the decree-holder in that case was probably well aware, seeing that he was the husband of the niece of the heir who was unrepresented. The case of Lutchmiput Singh v. Land Mortgage Bank I. L. R. 14 Cal. 446 (1887) is only a later stage of the case of Assamathem Nissa Bibi v. Roy Lutchmiput Singh I. L. R. 4 Cal. 142 (1878). The case of Lutchmiput Singh v. Land Mortgage Bank I. L. R. 14 Cal. 446 (1887) is only a later stage of the case of Assamathem Nissa Bibi v. Roy Lutchmiput Singh I. L. R. 4 Cal. 142 (1878). The question contested in that case seems to have been whether the Bank was entitled to retain possession until the proportion of the debt corresponding to Sadarunnissa's share was paid to it, and it was held that the Bank was so entitled. There was really no question of notice of the interest of Sadarunnissa raised in this case. In the head-note it is said that the existence or right of Sadarunnissa to a share in the properties was not known to the Bank, but this seems to have been the mere allegation of the Bank. According to the judgment of Garth, C. J., already quoted, the Bank well knew of Sadarunnissa's existence and rights, and was aware that she had gone to Medina. 6. The contentions of the learned pleader for the Respondent on this point must therefore prevail. 7. I also consider that on the authorities cited by him, we must hold that in the suit brought by Mr. Rooke the estate of Nilmoni was sufficiently represented. Mr. Rooke brought his suit against the only heir of Nilmoni that he knew of, or could know of, for Lakshminarain, the Defendant No. 7, was according to the Judicial Commissioner alone in possession of the mortgaged property. He was the de facto manager of Nilmoni's estate. The decree obtained by Mr. Rooke was a perfectly just one. He got a decree for no more money than he was entitled to. The minor's interests did not suffer in the hands of his cousin Lakshinarain. 8. As for the argument of the learned pleader for the Appellant that the Malias, Defendants Nos. 1 and 2, must have been aware of the existence of the Plaintiff, because they were co-sharers in the mokurari, this argument appears to me to be entirely futile. They lived in the Burdwan District. Nilmoni died in Manbhum. The Plaintiff resided in Bankura. There is no finding that the Malias knew of the existence of the Plaintiff. There is no presumption that they knew about him. It is therefore unnecessary to consider the position of the Malias, if they had been in possession of this knowledge. 9. They lived in the Burdwan District. Nilmoni died in Manbhum. The Plaintiff resided in Bankura. There is no finding that the Malias knew of the existence of the Plaintiff. There is no presumption that they knew about him. It is therefore unnecessary to consider the position of the Malias, if they had been in possession of this knowledge. 9. The suit therefore appears to fail on the merits, and indeed it would seem to me to have no merits. 10. The Plaintiff is certainly bringing this litigation in the interests of the Bengal Coal Company, who are trying to upset the sale to the Defendants Nos. 1 and 2, which took place so long ago as 1892. As has been said, the decree obtained against the Defendant No. 7 was a just one. The sale in execution of the decree was a good one. It should not be set aside after the lapse of so many years at the instance of a Plaintiff, who is evidently a puppet in the hands of a speculator, who seeks by the specious offer of redemption to obtain possession of land which rightfully passed to the Defendants at a time, when the existence of coal in the land was not known or suspected. The land has now been discovered to possess a greater value than it was formerly known to have. Hence the suit and the claim to redeem. 11.We dismiss the appeal with costs. Sharfuddin, J. 12. The suit out of which the present appeal arises was a redemption suit instituted by Ram Taran Goswami on the 13th July 1904. The facts of the case appear to be the following: Hira Chand Goswami had held the whole of Mouzah Deoli, of which he was a mokuraridar to the extent of twelve annas and brahmotterdar to the extent of four annas; in 1868 the predecessors in interest of Defendants Nos. 1 and 2 were given the dar-mokurari of 12 as. of this village; in 1879 Hira Chand had mortgaged his entire interest in the mouzah to Mr. Rooke, an agent of the Bengal Coal Co. On Hira Chand's death, his son Nilmoni succeeded him and in 1882 Nilmoni had sold nine annas out of his twelve annas mokurari rights to the predecessors in interest of Defendants Nos. 1 and 2. 13. Rooke, an agent of the Bengal Coal Co. On Hira Chand's death, his son Nilmoni succeeded him and in 1882 Nilmoni had sold nine annas out of his twelve annas mokurari rights to the predecessors in interest of Defendants Nos. 1 and 2. 13. It also appears that Nilmoni had two nephews through two different sisters, of whom one Ram Taran Goswami, is the Plaintiff, and the other, Lakshminarain, is Defendant No. 7, in the present suit. 14. From the concurrent findings of both the lower Courts it is clear that the whole estate of Nilmoni came into the exclusive possession of Lakshminarain Goswami, Defendant No. 7, and that the Plaintiff never asserted any claim during all these years till he instituted the present suit. 15. It appears from the finding of the lower Appellate Court that on the death of Nilmoni, Lakshminarain took possession of the entire estate and the Plaintiff has throughout allowed everyone to believe that Lakshminarain is the real owner. 16. Mr. Rooke brought his mortgage suit in 1891 in which the Plaintiff, Ram Taran Goswami, was not a party, and under his mortgage decree, dated the 7th April 1892, the whole of the mortgaged property was sold in execution of that decree on the 14th July 1892, and purchased by Defendants Nos. 1 and 4, in the name of Defendant No. 5. This sale was confirmed on the 14th August 1892. 17. Among the reliefs sought in the plaint, relief No. 2 is for a declaration that the Plaintiff is not bound either by the mortgage decree obtained by Mr. Rooke in 1891 or by the auction sale held there under on the ground of the Plaintiff not having been made a party to the mortgage suit brought by Mr. Rooke and also on the ground of his having been a minor at the time of the institution of the mortgage suit and at the time of the execution sale in 1892. 18. It also appears from the findings of the lower Courts that since their purchase Defendants Nos. 1-4 have been in peaceful possession of the property purchased by them at the said sale. 19. 18. It also appears from the findings of the lower Courts that since their purchase Defendants Nos. 1-4 have been in peaceful possession of the property purchased by them at the said sale. 19. The present suit was instituted on the 13th July 1904, that is to say, eleven years, eleven months and twenty-nine days after the confirmation of the sale, and hence one of the issues raised in the first Court was as to whether the law of limitation was a bar to that suit. 20. Another relief in the plaint is to the effect that the Plaintiff of the present suit should be allowed to redeem the mortgage either to the extent of the whole mortgage money or to the extent of a moiety only, his own share of the liability. 21. Under sec. 85 of the Transfer of Property Act (Act IV of 1882) " all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under Chap. IV of the Act relating to such mortgage: Provided that the Plaintiff has notice of such interest." 22. Mr. Rooke's mortgage suit was against the mortgaged property in which Lakshminarain Goswami was made a party as Defendant and in accordance with the findings of both the lower Courts Mr. Rooke had no notice of the interest now claimed by the Plaintiff of the present suit. That suit cannot therefore be held to be at all defective. The sale that took place was in execution of the mortgage decree of Mr. Rooke. From the findings of the lower Courts it is also clear that the mortgage executed by Hira Chand was a bond fide transaction and the decree and the sale were not collusive. The question therefore is, can the Plaintiff be allowed to redeem the mortgage in full or in half without a prayer to set aside the sale. 23. In para. 8 of the plaint the sale that took place in execution of the mortgage decree obtained by Mr. Rooke has been characterised as " an illegal auction sale," and in prayer No. 2 of the plaint, a declaration is sought to the effect that the Plaintiff was not bound by the said auction sale, but there is no distinct prayer for the setting aside of that sale. 24. It is to be observed that the mortgage-deed of Mr. Rooke has been characterised as " an illegal auction sale," and in prayer No. 2 of the plaint, a declaration is sought to the effect that the Plaintiff was not bound by the said auction sale, but there is no distinct prayer for the setting aside of that sale. 24. It is to be observed that the mortgage-deed of Mr. Rooke was a valid document and so was the decree obtained thereunder. The sale in execution of that decree was a valid sale and the Court ordering the sale had full jurisdiction to do so. The sale therefore cannot be treated as a nullity and the Plaintiff cannot ignore the existence of that sale. 25. The present suit is for redemption, but as a decree for redemption would be inconsistent with the previous sale, the Plaintiff cannot be allowed to redeem the mortgage without first having the sale set aside. But in the present suit there is no distinct prayer to that effect. 26. The sale had been confirmed on the 14th August 1892; the cause of action, therefore, accrued on this date and the sale could be set aside either under sec. 311, C. P. C., or by a regular suit. It was therefore necessary for the Plaintiff first to seek to set aside the sale in order to clear his ground for the redemption of his mortgage. And the form of the present suit is the form of a suit for redemption, but it is a suit which seeks a relief which is inconsistent with the subsistence of the auction sale to Defendants Nos. 1-4 and one year's limitation prescribed by Art. 12 (a) of the Act of 1877 ought to apply to the present suit, as no decree can be given to the Plaintiff without the sale being set aside and the above article is not confined only to suits which seek no relief other than a declaration that the sale ought to be set aside, but ought to apply also to suits where other relief is sought which can only be granted on an annulment of the sale. It is contended that the Plaintiff was a minor at the time of the sale but it appears that in 1905 when he gave his evidence in the present suit he was 25 years old and hence he must have attained his majority in 1898, that is to say, about 6 years after the confirmation of the sale, and not having instituted any suit to have the sale set aside after attaining his majority within the time allowed by the law of limitation, he is not entitled to succeed-in his prayer for redemption as it would be tantamount to a prayer to set aside the sale which cannot be done owing to the efflux of time. For these reasons and the reasons given by my learned brother, I agree in dismissing the appeal.