Judgment A.B.N.Sinha, J. 1. This appeal by the plaintiffs is directed against a judgment and decree dated the 19th August, 1958 passed by the learned Subordinate Judge, Second Court, Arrah, dismissing their suit for a declaration that the order dated the 21st July, 1952, setting aside the auction sale held on the 6th of June, 1938, passed by the Munsif First Court, Buxar, in Miscellaneous Case No. 182 of 1951 was null and void as being illegal and fraudulent and for a permanent injunction against defendant No, 1 from acting in furtherance of that order, 2. According to the plaintiffs case, the landlord--Dumraon Raj--had instituted a rent suit being no. 566 of 1936 for recovery of rent in respect of a holding belonging to the family of the defendants and having obtained a decree, had put the same in execution in Execution Case No. 1083 of 1937. Thereafter, the entire holding was put to sale in execution of the said decree, and the landlord decree-holder purchased the same on the 6th of June, 1938 and took delivery of possession over the same on the 15th of February, 1939. The plaintiffs claimed to have taken settlement of the holding from the Dumraon Raj through a registered patta dated the 12th of December, 1940 and to have come and continued in possession over the said holding ever since then. 3. The defendants with a view to somehow get back the land which once belonged to their family filed a petition under Order 21, Rule 90 of the Code of Civil Procedure and, having got the notices of that proceeding suppressed by bringing the court peons in their collusion, fraudulently obtained an ex parte order from the court in their favour on the 21st of July, 1952 setting aside the auction sale held on the 6th of June, 1938 in Execution Case No. 1083 of 1937. In the circumstances it was alleged by the plaintiffs that they had no knowledge about the proceeding under Order 21, Rule 90 of the Code of Civil Procedure, and they came to learn about it for the first time on the 8th of October, 1954 when the defendants filed a certified copy of the order in a revenue case at Ballia, whereupon they instituted the suit, out of which this appeal arises for the reliefs mentioned above. 4. 4. The defendants resisted the suit on the plea that the notices were duly and properly served upon the plaintiffs in the Miscellaneous case under Order 21, Rule 90 of the Code of Civil Procedure and that the plaintiffs had full knowledge of the same from the very beginning. They further pleaded that the suit, as constituted, was barred under the provisions of Order 21, Rule 92, Sub-clause (3) of the Civil Procedure Code. 5. The trial Court having come to the finding that the defendants had failed to establish service of notices on the plaintiffs and that there was a fraudulent suppression of those notices held that the order passed in Miscellaneous Case No. 182 of 1951 setting aside the auction sale held on the 6th June, 1938 was null and void. It further took the view that the suit was maintainable, as in its opinion the executing courts order being ab initio void the bar imposed by Order 21, Rule 92, Sub-clause (3) did not apply and that in any event the court could construe the suit as an application under Sec.151 of the Code of Civil Procedure and set aside the order in exercise of its inherent jurisdiction. In the result, it decreed the suit. 6. On appeal to the lower appellate court, the learned Subordinate Judge, while holding that on facts there was no reason to disagree with the findings of the learned Munsif, took the view that the trial court was wrong in holding that the suit was maintainable and not barred by the provisions of Order 21, Rule 92, Sub-clause (3) of the Code of Civil Procedure, It, accordingly, on that legal ground alone reversed the decision of the trial court and dismissed the suit Hence this appeal by the plaintiffs. 7. Before the learned Single Judge where this appeal was first put up for hearing, it appears that the only question canvassed for decision related to the correctness or otherwise of the view which had been taken by the lower appellate court in regard to the maintainability of the suit; and the learned Judge, being of the view that the question raised being an important one and there being no direct authority on the point in issue, referred the appeal to a Division Bench for disposal. When the appeal was first taken up for hearing before the Division Bench, it was contended on behalf of the defendant-respondents that the first appellate court had failed to record a finding in accordance with law on the question whether in the miscellaneous case arising out of the application under Order 21, Rule 90, of the Code of Civil Procedure notices had bean properly served on the plaintiffs or not. This contention was held to be well founded and, accordingly, the case was remitted to the first appellate court for recording a finding on the question whether notices had been properly served or not on the plaintiffs in the aforesaid miscellaneous case, and this appeal was directed to be listed for further hearing after the receipt of the finding called for. The finding, which has now been reached by the learned Subordinate Judge and which he has forwarded to this Court, is that the notices in Miscellaneous Case No. 182 of 1951 were properly served on the plaintiffs. 8. It is apparent that unless the aforesaid finding of fact relating to the notices in the miscellaneous case having been properly served upon the plaintiffs was held to be vitiated in law and was, accordingly, liable to be interfered with, it would be unnecessary to go into the question of the maintainability of the suit and examine whether the view taken by the learned Subordinate Judge before the remand to the effect that the suit was barred under the provisions of Order 21, Rule 92, Sub-clause (3) of the Code of Civil Procedure was correct or not, because on the finding that the plaintiffs had been duly and properly served with the notices in the miscellaneous case the very factual basis of the plaintiffs claim would disappear, and indeed the learned Government Advocate, who appeared in support of this appeal, conceded this position, and with a view to get the aforesaid finding out of his way attacked me same as vitiated in law on several grounds. It was, accordingly, urged on behalf of the plaintiff-appellants that the case required to be remitted back again to the first appellate Court so that a proper finding in accordance with law may be arrived at. 9. It was, accordingly, urged on behalf of the plaintiff-appellants that the case required to be remitted back again to the first appellate Court so that a proper finding in accordance with law may be arrived at. 9. The first ground on which the finding was attacked is that the peons report on the notices issued in the miscellaneous case and which had been marked as Ext. C on the evidence of D. W 4 could not be said to have been validly proved and brought on the record and it could not constitute a valid material on which reliance could be placed by the lower appellate Court. Reference in this connection was made to the deposition of D. W 4. It appears that this witness while identifying the writing on Ext. C as being in the handwriting of Banwari Ram, the peon, had contradicted himself by saying that it had not been written in his presence. Nonetheless he re-affirmed what he had stated in his examination-in-chief that he identified the writing in Ext. C to be that of Banwari Ram. No questions were put to him challenging his competence to identify the writing of the peon Banwari Ram. In the circumstances, I fail to see how it can be said that Ext. C had not been proved and validly brought on the record. Moreover, even if it were conceded that the mode of proof put forward in regard to Ext. C was either irregular or insufficient, it will be of no assistance to the appellant because it appears that the peons report was marked as an exhibit in the case without objection, and it is well settled vide Gopal Das V/s. Sri Thakurji, AIR 1943 PC 83, at p. 87 that "where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof." In the present case, as pointed out above, the document was marked as an exhibit without objection. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof." In the present case, as pointed out above, the document was marked as an exhibit without objection. Accordingly, I am of the opinion that this objection to the finding is without any merit. 10. It was next contended that the finding reached by the learned Subordinate Judge after remand must be held to be vitiated in law, because he had fallen into an error of record in assuming that Ramyad Choubey was one of the pltiffs, when, in fact, he was one of the judgment-debtors against whom the decree for rent had been obtained by the Dumraon Raj. It is no doubt true that while referring to the evidence of D. W. 2, the identifier, the learned Subordinate Judge has assumed that Ramyad Choubey was one of the plaintiffs, but it is quite clear to me that nothing material turned on that assumption. It appears from the deposition of D. W. 2 that he had identified the plaintiffs as well as Ramyad Choubey, that it was on his identification that the peon had handed over the notices to the plaintiffs as well as to Ramyad Choubey and that while the plaintiffs did not endorse the receipt of the notices on the duplicate thereof, Ramyad Choubey did get a receipt endorsed for him in the pen of his son Ambika Choubey. It is apparent that it is the aforesaid statement of D. W. 2 which the learned Subordinate Judge had in mind when he said in his judgment that "His evidence will show that all the plaintiffs took their copy of the notice but only one of them namely Ramyad Choubey endorsed receipt of the same in the pen of Ambika Choubey" Whatever may have been the reason for having erroneously described Ramyad Choubey as one of the plaintiffs, the fact remains that the learned. Subordinate Judge has referred, quite correctly, to the aforesaid material part of the evidence of D. W. 2, and his finding could not, therefore, be said to have been in any manner affected by the said erroneous assumption. Subordinate Judge has referred, quite correctly, to the aforesaid material part of the evidence of D. W. 2, and his finding could not, therefore, be said to have been in any manner affected by the said erroneous assumption. After all, what was material was whether the notices had been served on the plaintiffs or not, and in that context an assumption that Ramyad Choubey was one of the plaintiffs was of no consequence whatsoever. There is, accordingly, no substance in this contention as well. 11 Lastly, it was urged that the finding reached by the learned Subordinate Judge, after remand, was vitiated in so far as he had tailed to take note of the materials on which the trial Court had come to the conclusion that the notices had not been properly served upon the plaintiffs. In my opinion, there is no substance in this contention as well. All the materials on the record in the shape of oral and documentary evidence including the circumstance that if the plaintiffs had really been served with the notices of the miscellaneous case, they would not have allowed that case to be disposed of ex parte, have been fully taken into consideration by the lower appellate Court after remand; and after a review of all those materials, in particular, of the oral evidence of disinterested and reliable individuals examined on behalf of the defendants it has come to the conclusion that the notices had been properly served upon the plaintiffs. In the circumstances, therefore, it cannot be said with any justification that the finding reached in the present case was not well founded or that the learned Subordinate Judge had failed to take note of any relevant material or circumstance. 12. The challenge to the finding reached in the present case that the notices in the miscellaneous case arising out of the application under Order 21, Rule 90 of the Code of Civil Procedure had been properly served on the plaintiffs having failed, it must be held that it cannot be interfered with in this appeal. On the finding, it must be held that the plaintiffs had full knowledge of the miscellaneous case and no question of the defendants having fraudulently obtained an order setting aside the auction sale can arise. The very basis on which the plaintiffs rested their whole case, accordingly, disappears. 13. On the finding, it must be held that the plaintiffs had full knowledge of the miscellaneous case and no question of the defendants having fraudulently obtained an order setting aside the auction sale can arise. The very basis on which the plaintiffs rested their whole case, accordingly, disappears. 13. In the result, the judgment and decree passed by the lower appellate Court dismissing the plaintiffs suit must be upheld, though on grounds different than those on which the lower appellate Court had based its conclusion. The appeal, accordingly, tails and is dismissed with cost. Ramratna Singh, J. 14 I agree.