1. This is an appeal by Talib Ali Shah defendant 20, arising out of a suit on the basis of a mortgage deed dated 12th May 1904, executed by the original owner of this property, Mahbub Ali Shah, in favour of the plaintiff Piarey Lal and his co-mortgagee Nanak Chand whose rights he has since acquired under a subsequent purchase. When the suit was originally instituted Talib Ali Shah was described as a major and an ex parte decree was obtained against him and the other defendants. When however the decree was put in execution he objected that he had all along been a minor and had not been properly represented. The execution Court acceded to this contention and allowed the objection. The plaintiff Piarey Lal than applied to the original Court under Section 151, Civil P.C., claiming that the suit should be restored and proceeded with after the appointment of a guardian ad litem of Talib Ali Shah. The Court acceded to this request and the suit was tried on the merits and has been decreed. Talib Ali Shah now appeals.
2. In order to understand the pleas raised in defence it is necessary to briefly state the previous history of this property. Prior to the mortgage in question there was a mortgage deed executed by Mahbub Ali on 6th February 1904, in favour of his wife Begam Sultan in part satisfaction of her dower debt. Mahbub Ali was also indebted to a creditor Lala Gopal Rai who obtained a simple money decree against him in execution of which he put up Barwana Mahmudpur or sale which was purchased at auction by Begam Sultan for Rs. 575. Subsequently Begam Sultan executed a sale deed dated 19th December 1906 of this property along with 5 biswas of mahal Sardarnagar which she had purchased at another auction in favour of Talib Ali Shah.
3. The defence of Talib Ali Shah is two fold. In the first place he asserted that under the purchase from Begam Sultan he had acquired her prior mortgagee rights and that therefore the sale should be subject to such rights. In the second place he pleaded that inasmuch as no guardian ad litem had been appointed for him the suit could not be deemed to have been instituted on the date when he was impleaded as a major.
4. The first question depends purely on the interpretation of the sale deed of Begam Sultan. This is printed at p. 54. She purported to sell one-third of 19 sihams out of 140 sihams of the entire 20 biswas of Barwarna Mahmudpur which she had purchased at auction in execution of Lal Gopal Rai's decree along with 5 biswas of mahal Sardarnagar. She described herself as the full proprietor of these properties and transferred the absolute interest to the vendee putting him in proprietary possession and making him the absolute owner thereof. There was a further stipulation that there were no encumbrances on these properties and that if any hypothecation lien chargeable on the properties sold was discovered she would indemnify the purchaser. Reading the deed as a whole there is no doubt that she purported to transfer the property which she purchased at auction free from all encumbrances, that is to say, she transferred her absolute proprietary interest in the same. But by no stretch of the language the deed can be interpreted to mean that she also transferred the right to recover her mortgage money. As a matter of fact the previous deed is not at all mentioned in the document and there is no clause which could convey to Talib Ali Shah her rights as a mortgagee. Really she sold these lands free from her mortgage. Talib Ali Shah therefore can claim this property to be exempt from the liability to discharge Begam Sultan's mortgage but cannot claim to have himself acquired the mortgagee rights. The plea therefore has no force.
5. The second plea is equally groundless. When the suit was instituted Talib Ali Shah was duly made a defendant although he was wrongly described as a major. He ought to have been described as a minor and after the institution of the suit an application should have been made to the Court under Order 32, Rule 3 for the appointment of a guardian ad litem of the minor. The omission to follow the necessary procedure amounted to a material irregularity which made the decree totally ineffective and invalid as against the minor. But we cannot treat the suit as having been either dismissed or decreed effectively against Talib Ali Shah. The view which has prevailed in this High Court is that subsequent to the discovery that the minor has not been properly represented by a duly appointed guardian, it is open to the Court in the exercise of its inherent power under Section 151, Civil P.C., to restore the case to its original number on the file and proceed with it after duly appointing a guardian. We may refer to the case of Bhagwan Dayal v. Param Sukh Das  39 All. 8 which was again followed in Kirpa Kishan Kishori v. Babu Lal A.I.R. 1924 All. 225. These oases appear to have been dissented from by the Madras High Court on two grounds. First that Order 9, Rule 13 cannot apply as the minor was really no party to the decree, and secondly that the restoration of the case and the appointment of a new guardian is tantamount to the addition of a new party to the suit. It is unnecessary for us to consider whether Order 9, Rule 13 would be applicable to such a case, for in the present case the inherent jurisdiction under Section 151 has been exercised. We are unable to accept the view that the restoration of the case and the appointment of a guardian ad litem in any way amounts to the addition of a new party. Talib Ali Shah has been a defendant to the suit from the very beginning, the only defect being that no proper guardian was appointed for him. The appointment of a guardian ad litem must always be some time after the institution of the suit and the suit must be deemed to have been instituted against the minor on the date when it was filed, even though on that date the guardian ad litem was not or could not have been appointed. We are unable to accept the view of the Madras High Court expressed in Eda Punnayya v. Jangalu Kama Kotayya  53 I.C. 184 and followed in Armuga Goundan v. Periavanjiappa Goundan A.I.R. 1924 Mad. 489. We prefer the view which has so far prevailed in this High Court and dismiss this appeal with costs.