1. The facts in the suit under which this appeal arises, afford a good illustration of the difficulty to which a person may be put when he is endeavoring to enforce a document, which he holds against the heirs of a deceased executant.
2. The plaintiffs' father, Surja, had transferred property on more than one occasion. In 1897 he executed a mortgage in favour of a certain Bakhshi. In 1900 he executed a usufructuary mortgage of the same property in favour of Hardhiyan, the present defendant-respondent. It is not clear how the mortgage of 1897 was satisfied, but it apparently was satisfied, for we hear no more of Bakhshi. Surja, although he executed the deed of usufructuary mortgage, did not give up the possession of the property, and executed another deed in 1905 by which his retention of possession was regularised and by which he mortgaged his equity of redemption under the deed of 1905 in security for the re-payment of the rent due upon the property, the satisfaction of which formed the consideration of the deed of 1905. It will thus be seen that ha executed the deed of 1905, in payment of amounts that were actually due by him by way of rent and that, had he not executed that deed, he would have been liable to ejectment from the property in respect of which he had already executed a deed of usufructuary mortgage. Surja then died and Hardhiyan instituted a suit upon this deed against the present plaintiffs appellants, who are Surja's sons and who were then minors. It is Hardhiyan to whom I referred as the plaintiff who has had trouble in obtaining satisfaction of the amount due on his deed after the death of the executant.
3. When he instituted his suit in 1909, he nominated the defendants' mother as their guardian ad litem. As far as I can gather, she was the most suitable person to be nominated for that position and there does not appear to have been anybody else who could have been nominated. A notice was served on her personally, to which she did not pay the slightest attention. It appears to me that the plaintiff knew no other relation or friend who could be appointed guardian ad litem. Then the plaintiff came to the Court to appoint the Nazir of the Court as guardian ad litem. It is palpable that a Nazir of Judge's Court is not usually a very suitable person to appoint as a guardian ad litem of a minor; but the question, which few Courts appear to have tackled in the past is, what has the plaintiff to do when the person, who ought to be guardian ad litem, refuses to accept the responsibility without any reason at all? The plaintiff has in these circumstances, to seek the assistance of an officer of a Court.
4. He applied that the Nazir should be so appointed, and the Court proceeded to appoint the Nazir. Unfortunately overlooking the provision of Order 32, Rule 3, Clause 4, it omitted to serve a fresh notice upon the minors and a fresh notice upon their mother. It is almost certain that, had a fresh notice been served on the mother she would have treated it as she treated the previous notice, and paid no attention to it. But the omission was made and undoubtedly an irregularity was committed. I have examined the record of the previous case and am satisfied that the Nazir did not in any way neglect his duties. He appears to have endeavoured to get into touch with the mother of these minors, who refused to have any communication with him. He could not receive information of any sort or kind. On the face of it, the mortgage-deed of 1905 wag a good deed actually executed by the minors' father and was executed for binding consideration. On the face of it, it would appear that the consideration had bean taken for legal necessity. That is how the Nazir would ordinarily have read it. When the mother of the minors refused to come near him or to give him any information he could hardly be blamed for taking the position that there was no defence to the suit. He did not defend it accordingly; and a decree was passed against minors. In execution of this decree the property was purchased by Hardhiyan, the present defendant-respondent, without apparently the slightest objection on the part of any person representing the minors.
5. Several years after the sale had taken place, the minors (one of whom has attained majority) instituted the present suit to set aside the sale of the property to Hardhiyan, which took place in execution of the previous decree. The learned District Judge has dismissed the suit holding that, although an irregularity had bean committed it was an irregularity which is covered by present Section 99 of the Civil Procedure Code (corresponding to old Section 578 of the old Code) and that it did not affect the matter, because no prejudice had been caused by the irregularity to the present plaintiffs. This view appears to be in complete accord with the principles laid down by their Lordships of the Privy Council in Mt. Bibi Walian v. Bankey Behari Prasad (1903) 30 Cal. 1021. I do not consider that the present appellants were prejudiced in any way by the appointment of the Nazir as their guardian ad litem without notice, to the effect that his name has been proposed, having been served on their mother or themselves. Prom what I have seen of the case, I am under the impression that no effective defence could have been put in, and that the guardian ad litem had he contested the case, would have merely involved his wards in unnecessary expense. I, therefore, dismiss this appeal with costs on the higher scale.