1. This appeal arises out of a suit brought by Kuber Upadhia, a minor, for a declaration that the decree in suit No. 308 of 1912 was not binding on him because he was not properly represented in that suit. That suit was brought on a mortgage bond executed by Muasi, the father of the plaintiff-appellant and Hanuman, Muasi's brother. The plaintiff in that suit joined the two minor sons of Muasi, one of them being the plaintiff, as defendants and proposed that Muasi should be appointed their guardian ad litem, As a matter of fact, Mt. Sonbarsa Kunwar, the mother of the plaintiff, was appointed guardian by the Court, in spite of the fact that when notice was served on her inviting her to become guardian she refused to accept the notice. At the hearing the father filed a written statement contesting the suit on his own behalf and on behalf of his sons and he defended the suit. The suit was decreed and the father did not appeal.
2. In this suit as brought the allegation in the plaint was that the father's failure to appeal from that decree was gross negligence, and that therefore, the decree should not be held binding on the plaintiff. A further allegation was made in the plaint that the father had actually colluded with the plaintiff.
3. The trial Court decreed the suit holding that the minor plaintiff was not properly represented in the former suit and that, therefore, the proceedings as against him were void. On appeal the learned District Judge reversed this decree. He held that although the proceedings as to the appointment of a guardian were irregular nevertheless the father had, in fact, acted as guardian and defended the suit and that his interests were in no way adverse to his sons who were born after the mortgage was made, (so that no question of legal necessity arose), and that the sons had been in no way prejudiced.
4. Before us it has been argued broadly that where the provisions of Order 32 are not strictly complied with everything that follows thereafter is null and void because, it is said, that the language used is mandatory. There are a number of decisions of this Court in which it has been held that so long as the minor has not been prejudiced, mere irregularity in the appointment of a guardian will not be a ground for setting aside the decree. In this case it is to be noted that the father of the present plaintiff-appellant is joint with him, and the facts of the casa cannot be distinguished from those of Ram Barechha Ram v. Tarak Tiwari (1916) 14 A.L.J. 589. In that case the manager of a family who was a defendant declined to act as a guardian ad litem for one of the minor defendants. The Court thereupon appointed the Nasdr as guardian without issuing the requisite notice as required under Order 32, Rule 3, Clause 4. The Nazir put in no defence. The manager, however contested the suit and it was held that in the absence of any finding as to fraud or collusion, although there had been grave irregularity in the appointment of a guardian ad litem, yet as the manager of the family had fully contested the suit, the minor had in no way been prejudiced and could not get the decree set aside. It has been held in several cases, one of the most recent of which is Phulli v. Debi Prasad A.I.R. 1923 Lah. 575, that the absence of a formal order appointing a guardian ad litem for a minor is not in itself sufficient to render subsequent proceedings void in the absance of any prejudice having been found to have occurred to the defendant minor. We agree with both these decisions. In this case there is no finding of collusion. The only negligence which is attributed to the father is the fact that he did not appeal against the decree in suit No. 308 of 1912. Whether the father was likely to have been successful in appeal in that casa depended upon a right construction of the mortgage deed on which the suit was brought. The learned District Judge has come to the conclusion that if it was necessary to decide that point, he would have agreed with the Court in that case. If the Court is right in holding that the father did not appeal in consequence of legal advice that an appeal would be unsuccessful, it is obvious that no negligence can be attributed to him. In our opinion the appeal fails and is dismissed with costs including in this Court fees on the higher scale.