D.S. Dave, J.
1. This is an application in revision by two minor judgment-debtors through their next friend and mother Mst. Tikudi, against an order of the learned Judge Small Cause Court, Jodhpur, D/-30-7-1957.
2. The facts giving rise to it are that non-petitioner No. 1 Madhotal and his two sons filed a money suit against the petitioners and their rather Amarlal, who is non-petitioner No. 4 in this Court. The said suit was decreed against all the defendants on 6-10-1952. On 26-3-57, the petitioners filed an application under Section 151 C. P. C. in the Court of Judge, Small Causes, Jodhpur. It was urged on behalf of the petitioners that the trial Court had not appointed any guardian ad litem for them, that the decree against them was, therefore, void and their names should be struck off from the decree-sheet. This application was dismissed by the learned Judge and hence the present revision application.
3. It is urged by learned counsel for the petitioners that the learned Judge Small Cause Court has committed a grave error of law in refusing to set aside the decree, which was passed against the minors even though they were not represented by any guardian duly appointed by the Court,
4. Learned counsel for the non-petitioners Nos. 1 to 3 (decree-holders) has urged in reply that in the very plaint filed by his clients it was made quite clear by them that both the petitioners were minors and that non-petitioner No. 4 Amarlal, who was defendant No. 1 in the suit, was their father and natural guardian. It is further pointed out that his clients presented an application in the trial Court for formally appointing the petitioners' father Amarlal as guardian ad litem and that notices were issued to him and also to the petitioners in pursuance of that application. It is also urged that the petitioners' father filed a written statement not only on his behalf hut also on behalf of his two sons (petitioners), that the petitioners were thus effectively represented in the suit, that there was no prejudice to them and therefore even if the trial Court failed to pass a formal order appointing the petitioners' father as their guardian ad litem, they were not prejudiced in their defence in any manner and hence the trial Court has committed no mistake in refusing to set aside the decree. It has also been argued by him that the petitioners had subsequently filed a suit for setting aside the decree, but it was withdrawn by them, that a fresh suit was already time-barred when the present application was filed, that the petitioners having thus lost their right to file a suit, they could not get the same remedy by merely filing an application under Section 151 C. P. C. after such a long delay.
5. Learned counsel for the petitioners has vehemently urged that his clients had raised an objection in execution petition that the decree against them was void alb initio on account of the non-appointment of a guardian ad litem, that mere lapse of time cannot validate the decree and therefore this Court must interfere in its revisional jurisdiction and set aside the decree against them.
6. I have given due consideration to the arguments raised by learned counsel for either side. It may be observed that Order 32, Rule 3 C. P. C. lays down that if the defendant is a minor and the Court is satisfied of the fact of his minority, it is incumbent upon the Court to appoint a proper person as guardian for the suit for such minor. The object of this rule is to see that the minor's interest does not suffer, that he is properly represented in the suit and his interests are safeguarded. It is also the duty of the Court to see that the guardian appointed is a fit and proper person, that he has no interest directly or indirectly adverse to the minor and that he does not show negligence in conducting the case on behalf of the 'minor. In short, the law casts a duty on the Court in the case of a minor to appoint a guardian for him for conducting the case on his behalf and to see that his interest does not suffer.
It, therefore, follows that if no guardian is appointed for the minor by the Court and if the minor is not represented on account of the absence of a guardian, the decree against him should be taken as void. But the question arises that if the minor is effectively represented by his natural guardian and if the Court is aware of its duty to appoint a guardian and also issues notices for appointing him as a guardian-ad-litem but on account of inadvertence, it fails to pass a formal order of appointment, then whether the absence of the order about the appointment of a guardian should be taken as a mere irregularity or it should be taken as a patent defect which would render a decree void against the minor without a further proof to the effect that there was a real prejudice to the case of the minor.
7. In Walian v. Banks Behari Pershad Singh,. ILR 30 Cal 1021 (PC) one Zahural Huck had brought a suit to recover money due under a mortgage bond and since the original mortgagor Tilak-dhari Singh was dead, the suit was filed against his sons. One of those sons was adult, while the other 4 sons were minors and therefore they were sued through their mother. The plaintiff obtained an ex parte decree under which the mortgaged property was put for sale and ultimately purchased by the decree-holder. Thereafter, another suit was filed by the minor sons of the mortgagor for a declaration that the auction sale and the decree be declared inoperative and they may be put back in possession of the property to the extent of their shares.
Among other grounds one of the objections was that no summonses or other processes were served in the suit or execution proceedings upon the minors and that no guardian in the suit was duly appointed for them. The Subordinate Judge held that though no formal order appointing the mother as guardian for the infants had been drawn, the Court must be deemed to have sanctioned the appointment and the want of a formal order was at most an irregularity, which could riot invalidate the proceedings in the absence of proof of prejudice. On appeal to the High Court the decisionof the first Court was reversed. Their Lordships of the Privy Council concurred in the observation of the learned Judges of the High Court to the extent that under Section 443 of the C. P. C. (which corresponded to Order 32, Rule 3) it was necessary for the Court to see that a proper guardian is appointed to protect the interests of the minor and that the Court after satisfying itself of the tact of minority is bound to appoint a proper person to act on behalf of the minor in the conduct of the case. 'But' it was added by their Lordships 'it is quite another thing to say that a defect in following those rules is necessarily fatal to the proceedings'. It was further observed adverting to the decision of the High Court that:
'Their Lordships are unable to concur in the conclusion at which the learned Judges arrived. The present plaintiffs were substantially sued in the former suit, and the alleged fraud has been negatived. It appears to their Lordships that they were effectively represented in that suit by their mother, and with the sanction of the Court; and for the reasons given by the first Court their Lordships attach no importance to the certificate of Durga Dutt. There is nothing to suggest that their interests were not duly protected. The only defects which can be pointed out are that no formal order appointing the mother of the now plaintiffs to be their guardian ad litem is shown to have been drawn up; and that it is not definitely shown that any attempt was made to serve the summons in the former suit upon the infants personally, or upon their mother, a pardanashin lady, before serving it upon Gajadhur, the only adult male member and the karta of the family. It has not been shown that the alleged irregularities caused any prejudice to the present plaintiffs; nor indeed could there will be any, since it has been found that the original debt was one for which the present plaintiffs were liable'.
8. It is crystal clear from the above observation that if in the case of a minor defendant the only defect is the absence of a formal order appointing his guardian ad litem and if the minor is effectively represented in the suit by his guardian and if it is not proved that any prejudice has been caused to the minor, then the mere irregularity of the absence of a formal order appointing a guardian is not fatal to the decree, if any, passed against the defendant-minor. Following the above view in Walian's case, ILR 30 Cal 1021 (PC) it was observed in Pande Satdeo Narain v. Ramayan Tewari, AIR 1923 Pat 242(2) as follows:
'Where, on the face of the record, a person qualified to act as the guardian appears as a guardian of the minor for the suit, the Court has no power in another suit brought for the purpose of impeaching the validity of the decree, to examine the evidence in order to see whether notices under Order 32 Rule 3(4) were, in fact, served, or whether the person nominated as guardian did consent to act as guardian or whether the Court did expressly appoint such person as the guardian for the suit, unless it is shown that the defect in following the rates has affected the merits of the case. But where the record, on the face of it, shows that the minor was not represented by a guardian for the suit, or was represented by a guardian disqualified, under the express provision of the statute, from acting as guardian the position is the same as if the minor were not a party to the suit, and the judgment rendered by the Court is without jurisdiction and null and void'.
In Madhusudan Ray v. Jogendra Kar, AIR 1945 Pat 133, it was again observed that
'if a minor is represented on the record by a guardian not disqualified from acting, the jurisdiction of the Court to try and determine the cause as against the minor is complete and cannot be ousted on proof that the Court did not follow the appropriate procedure for the appointment of the guardian'.
In Nathu Mander v. Suraj Narain Jha, AIR 1948 Pat 415 it was observed that 'an irregularity with regard to the appointment of a guardian of a minor is a matter of prejudice and not of jurisdiction'. in this case also the learned judges followed the view taken in the two earlier cases, referred above.
9. Learned counsel for the petitioners has referred to Mt. Surji v. Manki Ram, AIR 1951 All 381. In that case, an appeal was allowed by the High Court ex parte. Later, when an application under Section 151 C. P. C. was presented, it was found that the respondent was dead at the time when the appeal was heard and his son was not brought on record. It was in those circumstances that the learned Judge observed that ''it would be an abuse of the process of the Court to allow a decree which is a nullity to stand'.
It is obvious that this was a case of a total absence of representation of the respondent at the time when the appeal was heard and it has no bearing on the facts and circumstances of the present case. Learned counsel has next referred to Inder Pal Singh v. Sarnam Singh, AIR 1951 All 823. In that case, it was observed that the law is quite clear that, a decree against a minor is void ab initio and a nullity, if it is passed in a suit in which no guardian of the minor is appointed or the appointment of theguardian is invalid or the validly appointed guardian goes not properly represent the minor. This case is also of little help to the petitioners, because it was not considered therein if a decree against a minor would be void even in a case where he is effectively represented by a natural guardian, though no formal order of his appointment is made by the Court. Learned counsel has, in the end, referred to Ramchandar Singh v. B. Gopi Krishna Dass, (S) AIR 1957 Pat 260. It would suffice to say that even this case does not help the petitioners, because it was held that
'where there is a mere detect, such as, absence of a formal order appointing a person as guardian-ad-litem, notwithstanding that the notice in terms of Order 32, Rule 3 (4), and Order 32, Rule 4 (3) have been served, such a defect in the appointment of the guardian will not necessarily be fatal to the proceeding, unless it is shown that the minor was prejudiced by the defect because such a defect is a mere irregularity, and a defect of mere form, and not of substance, and it does not go to the root of the jurisdiction of the Court to render any judgment against such a minor'.
In the present case, it appears from the record of the trial court that in the plaint both the petitioners were shown as minors and it was also shown that they were being sued through their father and natural guardian, Amarlal, who was defendant No. 1 in that case. It further appears that the court did issue summonses to both the petitioners and to their father in order to appoint him as a guardian-ad-litem. It was unfortunate that the trial court did not thereafter pass a formal order appointing the father as guardian at litem for both of his sons, but this formal defect cannot be said to have prejudiced the petitioners case. It may be pointed out that the suit against the petitioners and their father was a money suit for recovery of a principal amount of Rs. 430/- and Rs. 43/14/6 as interest.
The father filed his written statement not only on his behalf but also on behalf of his sons. He admitted receipt of the consideration to the extent of Rs. 280/- and denied the receipt of the remaining consideration. But thereafter he did not produceany evidence to show the want of consideration to the extent pleaded by him. It is significant that in the application which was filed by the petitioners under Section 151 C. P. C. it was not even suggested it their interests were in conflict with that of their father, or that they were prejudiced in a particular manner on account of the absence of the formal order about the appointment of a guardian.
10. Learned counsel for the non-petitioners(decree-holders) has produced in this Court a certified copy of the order of the Civil Judge, Jodhpur, in case No. 38 of 1954. It appears from its perusal that the petitioners had filed a regular suit through their mother in that court for a declaration that the house which the. decree-holders wanted to be sold in execution of the decree was their ancestral property and therefore it was not liable to sale. This suit was withdrawn under Order 23, Rule 1 C. P. C. on 12-10-54, It is significant that it was not allegedin the above case if the decree-holders had obtained the decree by means of any fraud or collusion, nordoes it appear if any attempt was made to get thedecree set aside. Learned counsel for the non-petitioners (decree-holders) has produced another certified copy of a plaint presented by the petitioners through their mother in the court of Munsif City Jodhpur in miscellaneous case No. 15 of 1954.
It appears from its perusal that the petitioners through their mother wanted to file a suit for getting the decree dated 6-10-52 set aside in forma pauperis. Their application for filing the suit in forma pauperis was not allowed and they were given a month's time to deposit the court-fees, but when it was not done, the application was dismissed on 28-2-57. Having taken the above proceedings and having failed in their attempt to get a remedy by a regular suit, it was not open to the petitioners to get the decree set aside by a mere application under Section 151 C. P. C. and that too after a period of about 4 1/2 years. In Tikararn Namaji v. Tarachand Gujoba, AIR 1954 Nag 135 it was observed that,
'a minor can impeach a decree on the ground of fraud, collusion, or gross negligence of his next friend or guardian; and that where the decree is to be set aside on the ground of gross negligence, an application for review is the proper remedy but if it is to be set aside on the ground of fraud or collusion, a separate suit must be instituted'.
It has already been pointed out above that in the present case the remedy by way of suit was not pursued and it was not even alleged by the petitioners in their application under Section 151 C. P. C., if their interests were adverse to that of their father or that he had been grossly negligent in the conduct of the case or that there was any fraud or collusion between him and the decree-holders. The decree was sought to be set aside on the mere ground that an order for appointment of a guardian ad litem was not formally made by the court.
It is true that the courts must strictly observe the provisions of Order 32, Rules 3 and 4 C. P. C., but at the same time the real object of the said rules is to safeguard the interests of the minor and in a case like the present one where the minor is effectively represented by his own natural guardian and father and where his interest does not conflict with that of guardian and where no particular prejudice is alleged, it would not be proper for the court to set aside the decree in exercise of its inherent power, simply because a formal order regarding the appointment of a guardian ad litem is not made by the court on ac-count of inadvertence. To my mind, the trial court rightly refused to grant the application under Section 151 C. P. C. and there is no good ground for this Court to interfere with its order in revision.
11. The application is, therefore, dismissed. In view of the circumstances of the case, the parties are left to bear their own costs.