1. This appeal arises out of a suit in which the plaintiff in effect sought to set aside a decree which had been-obtained by Debi Prasad. Debi Prasad's suit was based on the following allegations. He said that Lajja Ram owed a debt to one Ram Singh, that a creditor of Ram Singh had attached this debt and' sold it in execution of a decree obtained against Ram Singh and that he (Debi Prasad) was the auction-purchaser of the debt. At thetime that Beni Prasad brought his suit Lajja Ram was 'technically' a minor. His mother had been appointed his guardian under the Guardians and Wards Act. On this account the attainment of majority by Lajja. Ram was postponed from the period of 18 years (according to Hindu Law) to the spjeial period of 21 years prescribed by the Guardians and Wards Act. Beni Prasad accordingly sued Lajja Ram through his certificated guardian who, at the time of the institution of the suit, was the defendant No. 2, one Tikait Narain. The allegation in the plaint in the present suit is that, Tikait Narain colluded with Beni Prasad and did not plead limitation, that if limitation had been pleaded it would have been found that the alleged debt due by Lajja Ram to Ram Singh would have been barred by limitation, that the result of not pleading limitation was that Beni Prasad got a decree. It is this decree which the plaintiff seeks to set aside, having now come of age.
2. The Court of first instance dismissed the plaintiff's suit. The lower Appellate Court remanded the case for a finding on certain issues. The first issue was whether the plea of limitation could have been raised. The second issue was whether there had been collusion between. Beni Prasad and the minor's guardian. The Court found I that the plea of limitation might have been raised but that there was no collusion or fraud. On the return of the findings the District Judge granted the plaintiff a decree. He does not in any way find fault with the facts found by the Subordinate Judge upon the issues remanded, but he was of opinion that where it was shown that the plea of limitation might have been raided, the mere fact that it was not raised entitled the plaintiff to have the decree set aside. No doubt it is possible for a minor, where his guardian has conducted his case with gross negligence, to come to the Court and seek relief by way of review of judgment. No doubt also a minor is entitled by a separate suit to set aside a decree that has been obtained against him by fraud. The present proceeding is a separate suit and we entirely agree with the remarks of Field, J., in the case of Raghubar Dayal Sahu v. BhikyaLal Misser 12 C. 69. At page 76 the learned Judge says: 'if it be sought to set aside a decree obtained against an infant properly made a party, and properly represented in the case, and if it be sought to do this by a separate suit, I apprehend that the plaintiff in, such a suit can only succeed upon proof of fraud or collusion.' Let us consider for a moment, the facts of the present case. Tikait Narain was the certificated guardian of the that is to minor, that is to say, he was the guardian appointed by the District Judge previous to the institution of the suit and probably on the application of the minor's mother or the minor himself. Lajja Ram was a minor technically only. Had it not been for the fact that a guardian had been appoint by the Court, he would have reached his full age a considerable time before the institution of the suit. Lajja Ram had property and there was no reason why he himself should not have put forward, and instructed the Pleader to put forward, every plea and every circumstance which would have enabled him successfully to defend the suit brought by Beni Prasad. The allegation against the guardian is that he neglected to plead limitation. There is no evidence of any kind to connect Beni Prasad with the omission of the guardian to plead limitation. Furthermore, the plea of limitation is one to which effect can be given even though not pleaded. The Court is bound' to give effect to the provisions of the Limitation Act of its own motion. Therefore not withstanding the omission to plead limitation the facts and circumstances could have been given at the trial. In our Opinion there was no evidence from which the Court could infer collusion on behalf Of Beni Prasad. If the view taken by Field, J., in the case to which we have referred is correct, this in itself is sufficient ground for dismissing the plaintiff's suit. Even if we were to hold that a minor, can avoid a decree by a separate suit solely on the ground of the gross negligence of his guardian, we do not think' under the circumstances of this case any such negligence has been established, bearing in mind in particular the fact of the age of Lajja Ram who, the learned Subordinate Judge says, was a very intelligent young man.
3. We think the view taken by the Subordinate Judge was correct and that his decree should be restored. We accordingly allow the appeal, set aside the decree of the learned District Judge and restore the decree of the Court of first instance with costs', in* eluding in this Court fees on the higher scale.