1. This is an appeal by the principal defendant in a suit against an order passed by the District Judge of Ghazipur, under the provisions of Order XLI, Rule 23, of the Code of Civil Procedure. It arises out of the following facts and circumstances. In the year 1886, one Bhondu joined with his brother in the execution of a mortgage-deed hypothecating certain immoveable property. Bhondu was the head and manager of a joint Hindu family consisting of himself and his sons. In the year 1898, a suit was brought on this mortgage in which not only the original mortgagors were impleaded, but also the three sons of Bhondu. Of these three sons, one Raj Narain was major at the time, while the other two were minors. On the 30th of July 1898, an application was made to the Court to appoint Bhondu guardian ad litem for his two minor sons. Notice was issued to Bhondu, but no reply was received from him, nor did he put in any appearance in the suit. The Court, however, on the 30th August 1898 passed an order formally appointing Bhondu guardian ad litem, for his two minor sons, and on the 9th of September 1898 decreed the suit ex parte so far as Bhondu and his sons were concerned. Eventually the property covered by the decree was brought to sale on the 22nd of September 1903, and was purchased by the successor in-interest pi the original decree-holder. The present suit is brought by the two sons of Bhondu, who were minors during the litigation of 1898 and have now attained their majority. They impleaded as defendant No. 1 the successor-in-interest of the original decree-holder, who is also in possession as auction-purchaser of the property in question. They also impleaded their elder brother Raj Narain. It may be remarked that Bhondu himself has died in the interval. The plaintiffs claim to recover possession of their own shares in the property sold under the decree of the 9th September 1898, upon a finding that the decree itself and the auction-sale which followed thereon are not binding on them. The suit was resisted only by the first defendant, and on the pleas taken by him a number of issues were framed. The learned Subordinate Judge, however, decided only two of these issues, the first and the fourth. The question covered by these issues was, whether the present suit was or was rot barred by the principle of res judicata as laid down in Section 11 of the Code of Civil Procedure, along with the connected question whether the minor defendants in the suit of 1893 had been legally and effectively represented by Bhondu as their guardian ad litem so as to make the proceedings in that suit binding upon them. The learned Subordinate Judge found on these issues in favour of the contesting defendant, and accordingly dismissed the suit without going into the merits of the plaintiffs' case. On appeal the learned District Judge has reversed the findings of the first Court on these points and has remanded the case for trial on the merits. The first defendant appeals to this Court against this order of remand.
2. The learned District Judge has pointed out that, at the time of the litigation of 1898, there was in force a rule of this Court (rule 128) passed under the authority conferred on this Court by Section 652 of the former Code of Civil Procedure (Act XIV of 1882), according to which the consent of Bhondu should have been first obtained before he was appointed guardian ad litem for his minor sons. T-he record shows that this rule was overlooked and was in fact contravened by the Court which tried the suit of 1898. Notice was issued to Bhondu, but when he failed to put in an appearance his consent would seem to have been presumed from the fact of his having made no objection, and he was thereupon appointed in his absence. It has already been pointed out that he made no defence to the suit, which was in fact decreed ex parte ten days after the order appointing Bhondu guardian ad litem. It is contended before us in appeal that the District Judge should not have dealt with the matter as if the mere fact of Bhondu's appointment being in contravention of Rule 128 aforesaid was decisive o the whole question. Reading the judgment of the lower Appellate Court as a whole, it would not seem that the learned District Judge was himself of this opinion. He says that the question whether the minor defendants in the suit of 1898 were or were not prejudiced by the appointment of Bhondu, is a question which still remains to be tried. Nevertheless it might perhaps be contended that the effect of his order as it stands is to determine once for all in favour of the present plaintiffs the fact that they are not bound by the decree of the 9th of September 1898, and this is substantially the point taken before us. We have been referred to a good deal of case-law on the subject; probably the case most of all in point is that of Walian v. Banke Behari Pershad Singh 30 C. 1021 : 7 C.W.N. 774 : 5 Bom. L.R. 822 : 30 I.A. 182 : 8 Sar. P.C.J. 512. It would seem that in that case there had been a serious irregularity in the proceedings of the Court, in that no formal order appointing a guardian ad litem for certain minor defendants had been passed at all. There, however, the Court had the advantage, which has been denied to us to-day by the course which the present proceedings took in the Court of first instance, namely, the advantage of having before it complete findings on all the questions of fact involved. It was, therefore, in a position to hold that the minors had been effectively and adequately represented in the course of the proceedings which it was sought to challenge. Upon this it was held that the defect pointed out amounted to no more than an irregularity and was not sufficient reason for holding that the proceedings were null and void as against the minor defendants and the decree not binding upon them. We have been referred to other cases, such as Chandar Sekhar Tewari v. Balakdhari Dubey 15 Ind. Cas. 611 : 10 A.L.J. 149; Collector of Meerut v. Umrao Singh 29 Ind. Cas. 220 : 13 A.L.J. 437 and Daulat Singh v. Raghubir Singh A.W.N. (1894) 141. All of these cases are distinguishable from the present one on one broad ground, namely, that the guardian ad litem had in each case been duly appointed for the minor litigant or litigants concerned, and the person so appointed was the proper person to act as guardian. In the case now before us there was, to put it at the lowest, a serious irregularity about the appointment of Bhondu to act as guardian for his minor son, and it would seem also that, qua the question sought to be put in issue in the present litigation, Bhondu was not a fit and proper person to be appointed as guardian of his minor sons. The present plaintiffs are seeking to challenge the alienation of the joint family property effected by the sale of the 22nd of September 1903 on a decree which, as against their father and their elder brother at any rate, was duly obtained according to law. They claim to challenge this alienation on the ground that the decree, as against Bhondu, either did not represent a real debt due from Bhondu at all, or arose out of a debt tainted with immorality. Now these were pleas which Bhondn himself could not have been reasonably expected to raise, it is, therefore, practically impossible to say whether or not the minor defendants, in the litigation of 1898, were prejudiced by the appointment of Bhondu to act as their guardian ad litem, until we know whether a good defence on the lines above suggested was or was not open to the said defendants and could have been set up on their behalf by a properly appointed guardian, that is to say, the procedure adopted by the learned Subordinate Judge in seeking to dispose of the case before him upon what he conceived to be a preliminary issue of law, without going into the facts of the case, is practically au impossibility. To this extent the learned District Judge is right, namely, that the suit requires to be tried out on the merits. It has to be determined whether the present plaintiffs are or are not in a position to impeach the alienation of the joint family property effected by means of the decree passed against Bhondu and Raj Narain. in order to ascertain this fact it has necessarily to be considered whether the plaintiffs would have had a good defence against the suit of 1898 on the lines suggested by these pleadings. Subject to these remarks it seems to me that the decision of the learned District Judge--if that decision be properly understood--is not fairly open to objection. I would, therefore, dismiss this appeal while leaving costs of the parties here and hitherto to be costs in the suit.
3. I concur.
4. The appeal is dismissed. Costs of the parties here and hitherto will be costs in the suit.