1. We take the facts in this case to be that the father of the present appellants was appointed their guardian ad litem, although he had never appeared and consented to his appointment, and that the suit was afterwards decreed against them ex parte. The lower Court has refused to set aside that decree on the ground that the procedure provided by Order 9 Rule 13 of the Civil Procedure Code cannot be applied to it.
2. The appointment of the guardian was certainly bad in the circumstances; and the minors must therefore be taken to have been unrepresented. The question is then whether Order 9 Rule 13 is applicable. We have been referred to two decisions of this Court and certain decisions of the Allahabad High Court to show that it is. The Allahabad decisions however, of which the latest is Bhagwan Dayal v. Puram Sukh Das I.L.R. (1916) All 8. were given without reference to the principle, which in my opinion governs the case and the judgment of the Judicial Committee, to which I shall refer. My learned brother's decision in Sharoof Sahib v. Raghunatha Sivaji (1915) 18 M.L.T. 401 appears to have turned on the invalidity of the guardian's appointment, the application of Order 9 Rule 13 not having been disputed and my own decision in Adyapadi Ramanna Udpa v. Krishna Udpa : (1914)27MLJ167 dealt with the negligence of a regularly appointed guardian and the question whether it could be regarded as ' sufficient cause' within the meaning of the rule.
3. The proper principle to apply however is that the minor, if he is not properly represented, cannot be regarded as a party to the proceedings at all, they therefore cannot bind him and there can be no question of his having been prevented by any sufficient cause from conducting them. This follows from Rashid-un-nissa v. Mahomed Ismail Khan I.L.R. (1909) All. 572 : 19 M.L.J. 631 in which it was held that, the appointment of a guardian not having been valid, the litigation she had conducted on behalf of the minor was a nullity and the minor was not a party to it for the purpose of Section 244 of the former Code. This ground of decision is implied in lower Court's reference to the possibility that the minors may be entitled to treat the decree passed as not binding on them. Adopting it, I would dismiss the appeal with costs.
Seshagiri Aiyar, J.
4. I agree
5. I shall however add a few words having regard to the citation of a decision to which I was a party, namely Sharoof Sahib v. Raghunatha Sivaji (1915) 18 M.L.T. 401. In that case, there was no argument that the procedure prescribed by Order 9 Rule 13 was not applicable, where the minor was not properly represented; therefore that decision is not an authority for the proposition contended for on behalf of the appellant.
6. We must take it that the minor was not properly represented in the suit. The consent of the proposed guardian was not obtained for his appointment and according to principle and the recognised practice of this court, no guardian can be appointed unless he has expressed his willingness to act. It follows, therefore, that the minor though co-nominee in the array of parties, was not represented and was not consequently a party to the suit. The decision of the Judicial Committee in Rashid-un-nissa v. Mahomed Ismail Khan I.L.R. (1909) All. 572 lays this down distinctly. The learned Chief Justice and Sadasiva Aiyar, J. have taken the same view in this Court. My learned brother's decision in Adyapadi Ramanna Udpa v. Krishna Udpa : (1914)27MLJ167 related not to the question of the want of representation of the minor, but to gross negligence in the conduct of the guardian properly appointed. I do not think that decision is relevant to the present case.
7. Two decisions of the Allahabad High Court have been quoted which prima facie are in favour of appellant's contention. As regards Bhagwan Dayal v. Paramsukh Das I.L.R. (1915) All. 179 I do not find much difficulty. In that case a Court amin was appointed, without notice to the mother, the natural guardian. The learned Judes held that it was an improper appointment. I do not understand them to have decided that the appointment was invalid. In this view, the decision is not inconsistent with the Privy Council decision. But in a later case, Bhagwan Dayal v. Param Sukh Das I.L.R. (1916) All. 8 the learned Judges understood the earlier case to have decided that there was no valid appointment of a guardian, and on this construction of their Court's judgment, they hold that Order 9 Rule 13 was applicable to the case. It may be remarked that the learned Judges relied on the inherent power of the Court to vacate the judgment; when this provision is appealed to, I fail to see why the order should have been set aside under Order 9 Rule 13. As in my opinion the view taken in the last mentioned case is not reconcilable with Rashid un-nissa v. Mahomed Ismail Khan I.L.R. (1909) All. 572. I am unable to accept it as good law.
8. There can be no question that to attract the provisions of the order relating to the setting aside of ex parte decrees, the person seeking the aid of the court must be a party to the suits. It is of the essence of Order 9 Rule 13, that the complaint must come from one whose rights could validly be dealt with by the trial court. If, in consequence of the failure to have a guardian appointed the minor was not properly before the-court, any decree passed against him and any proceedings intended to affect him would be nullities. He has his remedy against the invalid act of the court in quite a different proceeding and not in a proceeding instituted to set aside the decree treating it, as if he were properly before the court. This conclusion follows from the Privy Council decision and from the decision of this court already quoted by me.
9. In my opinion the Subordinate Judge was right in holding that in the view of the facts he had expressed, the present application was incompetent. I agree in the order proposed by my learned brother as to costs.