JUDGMENT : G.C. Das, J. - These two appeals were filed by the unsuccessful Plaintiffs against the reversing judgment of Sri. S.K. Mohapatra, Additional District Judge of Balasore. 2. Plaintiffs filed a suit, being - C.S. No. 200/54 of the Court of the Munsif of Balasore, for a declaration of their title and recovery of possession of lands bearing an area of 3-71 acres and for mesne profits of Rs, 20/ -. They also prayed for an enquiry for future mesne profits. The disputed lands were distributed in four plots.' Plot No. 10 had an area of O. 77 acres, plot No. 39 within area of 0,32 acres, plot No 62 with an area of 1. 75 acres, and plot No. 64 with an area of O. 87 decimals; the total being 3. 71 acres. The disputed land stood recorded in the names of one Kanchan Dibya, Raghunath Misra, Raj Ballav Misra and Purushottam Misra. Raghunath and Raj Ballav were the sons of Arjun. The line of Raghunath has become extinct. Plaintiff-l is the son of Raj Ballav. Plaintiff-2 Netra Dibya, is the widow of Purushottam. Plaintiffs 3 to 5 are the subsequent alienees from Raghunath, Raj Ballav and Kanchall of an area of 00.77 acres in plot No. 10 on a registered' deed of sale dated May 16, 1933. Kanchan having died; her properties devolved on the two branches, that is, Raghunath and Raj Ballav forming one branch and Purosottam forming the other, in equal shares, that is, each having eight annas interest in the property left by Kanchan Dibya. Raghunath died leaving his son, Mohan. Mohan having died without any issue or a widow, his line has become now extinct. Defendants 1 to 8 are admittedly the landlords. Defendants 1 to 5 brought a rent suit, being rent-suit No. 12219/41-42, against Mohan Misra and Plaintiff-l. They also impleaded one Ghandshyam Misra purporting to be the adopted son of Purushottam. To this litigation Defendants 6 to 8, however, were not made parties. Admittedly Plaintiffs 3 to 5 were also not parties to this suit. Plaintiff-2 was added as a party being the guardian of Ghandshyam but she was not added as a party in her personal capacity. No body appeared in the suit. As a consequence, ex parte decree was passed. Admittedly Plaintiffs 3 to 5 were also not parties to this suit. Plaintiff-2 was added as a party being the guardian of Ghandshyam but she was not added as a party in her personal capacity. No body appeared in the suit. As a consequence, ex parte decree was passed. In execution of the said ex parte decree the entire disputed properties were sold in court auction and the decree-holders purchased them for a sum of Rs. 25/- only. The sale took place on April 24, 1943, and this was confirmed on June 1, 1942, Plaintiffs filed an application under Order 21 Rule 90 CPC to set aside the said sale on October 1942. That application was rejected on December 27, 1943. As a result of this, the Plaintiffs were dispossessed of the emit properties. They, however, filed the suit after about 11 years on August 28,1954. 3. Defendants 7 and 8 were ex parte. Defendant-.6 is a minor and he supported the defence of Defendants 1 to 5. The defence of Defendants 1 to 5 was a denial of the plaint allegations. Their defence, in essence; was that Ghandshyam was the adopted son of Purushottam Misra who was properly represented by Netra Dibya, the mother-guardian of Plaintiff-2 in the rent-suit. They denied that the decree obtained in the said rent-suit to be fraudulent. Their case was that the parties had notice of it and they were set down ex parte since they did not appear. Subsequent to the decree and the sale, all the Plaintiffs filed a petition under Order 21, Rule 90 of the CPC which was eventually; rejected. Hence their suit is not maintainable under Clause (3) of Rule 92 of Order 21 of the Code of Civil Procedure. They also contended that the suit is barred by time and that the Plaintiffs' have no cause of action for the present suit. They denied that the Plaintiffs were entitled to the mesne profits. 4. On these pleadings, the learned Munsif, who heard the suit at the first instance, came to the conclusion that the rent decree passed in respect of the shares of Plaintiffs 3 to 5 is not a rent-decree, but a money-decree and as such the interest only of Plaintiffs 1 and 2 who were parties to the said decree had passed and it did not affect the interest of Plaintiffs 3 to 5. He also held that suit to be maintainable by Plaintiffs 3 to 5. On the question of limitation also, he held the suit to be not barred by time. Ultimately, he dismissed the suit as far as Plaintiffs. 1 and are concerned and decreed the suit as far as Plaintiffs 3 to 5 are concerned. Plaintiff 1 and 2 preferred an appeal against this judgment which was numbered as Munshif appeal No. 61/39-B/71-B of 1957.58. Defendants 1 to 8 also filed a separate appeal which was numbered as Munsif Appeal No. 63/40-B/71-B of 1957.58. The learned Additional District Judge heard both the appeals together and set aside the judgment and decree of the trial Judge and dismissed the Plaintiff's suit, holding that the decree obtained by the landlords was a money-decree and although the suit was. maintainable it is hit by Article 95 of the Indian Limitation Act. Plaintiffs preferred two appeals, one against the decision in Munsiff Appeal No. 61/39/71-B of 1957.58- which was numbered as second appeal No. 46 of 1959, and the other against the Munsif Appeal No. 63/40/72 of 1957-58 which was numbered as second appeal No. 45 of 1159. Both these appeals were heard together and are governed this common judgment. 5. Mr. R.N. Sinha, learned Counsel on behalf of the Appellants, contended that in view of the findings of the learned Judge, the only question relevant in this appeal is the question of limitation. The other findings being in his favour, he did not challenge them. According to him, it is Article. 142 of the Limitation Act which applies to the facts of the case and not Article 95. For that purpose, it would be necessary to set down as to what really the Plaintiff's case was; whether it was a Case of fraud pure and simple or their complete exclusion from the earlier suit? The Plaintiffs in paragraph 4 of their plaint had clearly stated that Plaintiff-1 was a party to the suit under the guardianship of his mother and Plaintiff-2 was described as the guardian of Ghandshyam Misra, presumably as the adopted son of Purusottam Misra. It would be relevant to state here that the adoption was found against Ghandsbyam and that has been challenged. It would be relevant to state here that the adoption was found against Ghandsbyam and that has been challenged. It is also important to note that the Plaintiff No. 2 was arrayed as the mother-guardian of Ghandshyam and Plaintiffs 3 to 5 were not made parties at all. Similarly, Defendants 6 to P, the cosharer land-lords were also not made parties to the suit. True it is that the Plaintiffs have stated that the decree-holders have obtained a decree fraudulently by suppression of summons, but their main case was that since they were not parties to the suit, and Plaintiff-l not having been properly represented, the decree is not binding upon them. A distinction is always made between a decree which is obtained on fraud and collusion and a decree which is not binding at all. In case certain fraud is committed by the Plaintiff decree-holders in the earlier suit, and the sale is effected as a result of the execution of that decree, provisions have been made in the Code of Civil Procedure, that is the judgment debtors can come up with an application under Order 21 Rule 90 to set aside that sale on the ground of fraud or material irregularities. Those are the two grounds on which a judgment-debtor can impeach a sale. When the order goes against the judgment-debtor in an application under Order 21, Rule 90 Code of Civil Procedure, he is not allowed to bring a fresh suit on the self-same ground under Order 21, Rule 92(3) Code of Civil Procedure. It is well settled that a suit to set aside an execution sale on the ground of fraud or irregularity is Dot maintainable by the persons who are parties to an application under Order 21, Rule 90 Code of Civil Procedure, whose application has been dismissed though they may not be parties to the decree. Order 21, Rule 92 specifically bars a suit by any person who was a party to an application under Order 21, Rule 90 which has been rejected. Arguments were advanced in this case that since all the Plaintiffs were parties to the application under Order 2l, Rule 90, Code of Civil Procedure, the present suit is not maintainable by them, as it is hit by Order 21, Rule 92(3). Mr. Sinha contended that in view of the pleadings Order 21 Rule 92(3) does not apply. Arguments were advanced in this case that since all the Plaintiffs were parties to the application under Order 2l, Rule 90, Code of Civil Procedure, the present suit is not maintainable by them, as it is hit by Order 21, Rule 92(3). Mr. Sinha contended that in view of the pleadings Order 21 Rule 92(3) does not apply. He further contended that only the right-title and interest of the judgment debtors bad passed and not the holding. For this purpose he sought to rely upon a decision of this Court in the case of Udayandrayan Pati v. Radhashyam Mangaraj Mahapatra ILR 1949 Cutt 559 wherein it was held that where a money-decree is passed the only right title and interest of the judgment debtor passes in the sale and not the holding. There is no question that the decree in this case is a money-decree and it cannot be construed to be a rent decree since some of the tenants were not made parties as well as some of the cosharers were not made parties to the said suit. Plaintiffs in this suit having challenged the binding nature of the decree, their suit could not be hit by clause (3) of Rule 92 of Order 21 of the Code of Civil Procedure. 6. On question of limitation, Mr. Sinha argued that it was never the case of the Plaintiffs that the decree was obtained by fraud. Their main case was that since they were not made parties except, Plaintiff-1, the decree is not binding on them. As regards, Plaintiff-1 his contention was that since no guardian was appointed by the court, the minor Plaintiff-1 cannot be held to be bound by that decree. What happened in that case was that Plaintiff-1 was described, under the guardianship of his mother. The mother did not appear in the suit. No steps were taken to appoint another guardian by the Court. Accordingly, it must be held that the minor was not properly represented or was before the Court. Hence in that view of the matter, Plaintiff would not be bound by that decree also. It is apparent from the ex-parte decree, Ext. 4, that the Plaintiff No. 1 was represented by his mother-guardian in that connection Mr. Sinha relied upon a decision of a Division Bench of the Patna High Court reported in Barik Ram Govind Singh and Ors. It is apparent from the ex-parte decree, Ext. 4, that the Plaintiff No. 1 was represented by his mother-guardian in that connection Mr. Sinha relied upon a decision of a Division Bench of the Patna High Court reported in Barik Ram Govind Singh and Ors. v. Chowra Uraon and Ors. AIR 1958 Pat 97 That was a case under the Cbhotandgpur-Tenancy Act, where it was held that if there was a were advanced in this case that since all the Plaintiffs were parties to the application under Order 2l, Rule 90, Code of Civil Procedure, the prevent suit is not maintainable by them, as it is bit by Order 21, Rule 92(3). Mr. Sinha contended that in view of the pleadings Order 21 Rule 92(3) does not apply. He further contended that only the right-title and interest of the judgment debtors bad passed and not the holding. For this purpose he sought to rely upon a decision of this Court in the case of Udayandrayan Pati v. Radhashyam Mangaraj Mahapatra ILR 1949 Cutt 559 wherein it was held that where a money-decree is passed the only right title and interest of the judgment debtor passes in the sale and not the holding. There is no question that the decree in this case is a money-decree and it cannot be construed to be a rent decree since some of the tenants were not made parties as well as some of the cosharers were not made parties to the said suit. Plaintiffs in this suit having challenged the binding nature of the decree, their suit could not be hit by clause (3) of Rule 92 of Order 21 of the Code of Civil Procedure. 6. On question of limitation, Mr. Sinha argued that it was never the case of the Plaintiffs that the decree was obtained by fraud. Their main case was that since they were not made parties except, Plaintiff-1, the decree is not binding on them. As regards, Plaintiff-1 his contention was that since no guardian was appointed by the court, the minor Plaintiff-1 cannot be held to be bound by that decree. What happened in that case was that Plaintiff was described, under the guardianship of his mother. The mother did not appear in the suit. No steps were taken to appoint another guardian by the Court. What happened in that case was that Plaintiff was described, under the guardianship of his mother. The mother did not appear in the suit. No steps were taken to appoint another guardian by the Court. Accordingly, it must be hold that the minor was not properly Represented or was before the Court. Hence in that view of the matter, Plaintiff would not be bound by that decree also. It is apparent from the ex-parte decree, Ext. 4, that the Plaintiff No. 1 was represented by his mother-guardian In that connection Mr. Sinha relied upon a decision of a Division Bench of the Patna High Court reported in Barik Ram Govind Singh and Ors. v. Chowra Uraon and Ors. AIR 1958 Pat 97. That was a case under the Chhotandgpur Tenancy Act, where it was held that if there was a failure to issue notice under Sub-section (1) of Section 190 of that Act, the subsequent sale in execution is void. In that connection Madan, J. held that were the Defendants in a suit are minors the Court must see not merely that a guardian is appointed but that the guardian has consented to act. Where notices are served on the minor Defendants through their mothers as guardians, but no appearance is made on their behalf and there is no order of the Court appointing the mothers as the guardians or showing that: the guardians consented to act on their behalf, the decree passed in such suit against the minors is a nullity. In the present case there was no order showing that the mother of Plaintiff was ever appointed a guardian. The ex parte decree, Ext. 4, shows that the mother did not appear. The court should have taken steps to appoint a guardian when the proposed guardian of the minor did not appear. Accordingly the Plaintiff-l would not be bound by this decree. 7. Mr. R.K. Mohapatra, learned Counsel on behalf of the Respondents, contended that the question of limitation should be decided on the pleadings themselves. As I have stated earlier, it is abundantly clear from paragraphs 4 and 5 of the plaint that the Plaintiffs' main case was that they not being made parties to the rent suit, the decree passed there in is not binding on their. Mr. Mohapatra argued that it is Article 95 of the Limitation Act which would apply. As I have stated earlier, it is abundantly clear from paragraphs 4 and 5 of the plaint that the Plaintiffs' main case was that they not being made parties to the rent suit, the decree passed there in is not binding on their. Mr. Mohapatra argued that it is Article 95 of the Limitation Act which would apply. For that purpose, he sought to rely upon three decisions, one of the Lahore High Court, another of the Madras High Court and tile third of the Bombay High Court. In the case of AIR 1929 618 (Lahore) : the facts were that certain immovable properties having been attached and sold in execution of a decree, a lady of the name of Mt. Radhi, who was neither a party to the suit, nor to the execution proceedings, but laid claim to the said properties, applied to the executing court to set aside the sale on the ground of material irregularity in conducting it. That application was' disallowed and her appeal against that order also did not succeed. Thereafter, she filed a regular suit asking for the following two reliefs amongst others; (1) a declaration that the sale was unlawful and null and void; (2) if the sale should be found valid, a declaration that she alone was entitled to the surplus proceeds of sale after payment of the amount due to the decree-holder. On there pleadings amongst others the following two issues were framed; (1) is the suit entertain able and (2) Is the Plaintiff entitled to receive any surplus sale price. Their Lordships after having considered the various provisions held that having regard to the plaint language of Sub-rule (3) we form the decision of the trial court tat the suit as to this relief was incompetent. But that Court must have given a decision on issued. 2, that is, whether the Plaintiff is entitled to receive any surplus sale-price and accordingly remained the case. This case does not appear to have any application to the facts of the present case. 8. But that Court must have given a decision on issued. 2, that is, whether the Plaintiff is entitled to receive any surplus sale-price and accordingly remained the case. This case does not appear to have any application to the facts of the present case. 8. In the case of the Narayan v. Paopayi ILR Mads 83 it was held that a purchaser of one item of the mortgaged property can apply under Rule 90 to have the sale of the other hems of the mortgaged property set hastily as he is a person whose interests are affected by the sale within the meaning of Rule 90. In the case of N. Abdul Rahim Vs. Lingappa Vaijappa Angol, their Lordships held that the receiver was a person whose interest was affected by the decree. These two decisions merely explained the meaning of "person whose interest is affected". Hence they do not help the contention of Mr. Mohapatra. The plaint case having been based on he fact that since the Plaintiffs were not made parties to the rent suit, the decree in that case is not binding upon them; the questions really do not arise. 9. On the question of limitation, Mr. Mohapatra argued that it is Article 95 of the Limitation Act that applies. Even if Article 95 does not apply, the residuary Article, that is Article 10 would apply. For this purpose, he relied upon a decision of the Calcutta High Court reported in Kaliprasanna Sinha and Others Vs. Haripada Ghosh Hajra and Others. What was decided in that case was that when a person is prima fact bound by a fraudulent decree he cannot be suing ostensibly simply for possession ignore the decree and thereby evade the operation of Article 95, and where there is such a decree standing, in the way of the Plaintiff obtaining relief which is inconsistent with that decree he must first of all bring his suit within the period prescribed by Article 95 in order to get the decree out of the way. This decision is broad based upon the fact that the person is prima facie bound by the fraudulent decree. In the instant case that was the very challenge which was made by the Plaintiff. Hence that decision is distinguishable on its own facts and is certainly not applicable in the case of Suburdas Mahasukhram Gandhi v. Gopalji Nandas and Ors. This decision is broad based upon the fact that the person is prima facie bound by the fraudulent decree. In the instant case that was the very challenge which was made by the Plaintiff. Hence that decision is distinguishable on its own facts and is certainly not applicable in the case of Suburdas Mahasukhram Gandhi v. Gopalji Nandas and Ors. AIR 1913 Bom. 283 their Lordships of the Born bay High Court held that the fraud contemplated by Article 95 is fraud practised upon a party to the decree or a party to the transaction in which the fraud was committed. But when the parties to a decree choose not to challenge it, they are bound by it, and the decree cannot be said to be void. A stranger who is intended to be defrauded by it, cannot seek to have the decree set aside, but all that he can sue for is to have it declared that his interest cannot be affected by such a collusive decree. A suit for such a declaration does not come within the purview of Article 95 but is governed by Article 120 and the time begins to run either when the awards ire made or when the decrees are passed on these awards. In this case the learned Judges similarly proceeded upon the footing that there was collusive decree. 10. The position, however, series to have been clarified in a recent decision of the Patna High Court in the case of Chandiprasad Vs. Awadh Narain Jha and Others. There a division Bench of the Patna High Court held that Article 142 is applicable in such cases. The facts in that case appear to be somewhat similar with the facts of the present case. The landlords instituted a suit for rent impleading the original tenants and not the Plaintiff who was a subsequent purchaser, and obtained a decree. In execution of the said rent-decree the Landlords got the lands sold and purchased them selves. An application under Order 21, Rule 90,1 Code of Civil Procedure, was filed by the Plaintiffs and eventually compromise was affected by virtue of which the Plaintiffs were allowed to deposit certain sums of money which they did and to sale was set aside. Subsequently another rent suit was filed by the Landlords again against the Original tenants and not the Plaintiffs. Subsequently another rent suit was filed by the Landlords again against the Original tenants and not the Plaintiffs. Again there was decree and the lands were sold to Defendant fourth party at the auction-sale. 11. Inspite of the delivery of possessions, the Plaintiffs continued in possession. In the suit they alleged that their interest was not affected since they were not parties to the suit or the execution proceedings. It was held that the case being for declaration of title and confirmation of possession specific provisions of Article 142 of the Limitation Act would apply to such cases. With great respect, I agree with the view taken by their Lordships of the Patna High Court and held that Article 142 would apply to the facts of the present case. 12. Accordingly, I would set aside the judgment of the learned Additional District Judge, Balasore, and allow these appeals and decree the Plaintiff's suit. There will, however, be no order for costs of this Court. Final Result : Allowed