1. The Lower Appellate Court held that the Suit was barred, because, a previous decree having to be set aside, before relief could be given, Article 144, Schedule 1 of the Limitation Act was inapplicable.
2. Appellants contend that the previous decree need not be set aside, being a nullity, in as much as it was obtained against them as minors with their mother as a guardian ad litem; and, her interest in the litigation being adverse to theirs, she was not competent to represent them with reference to Order 32, Rule 4(1) proviso. Assuming, but not deciding that the mother had any sort of adverse interest, we are not prepared to hold that she was so wholly disqualified that her representation must be treated as no representation and the decree must be regarded as null and need not be set aside on proof of fraud or otherwise. No authority cited for appellants goes that length. Baijnath Rai v. Dharam Deo Tiwari I.L.R. (1916) All 315 has been relied on. But in it the question was not whether a previous decision should be set aside, but whether it was res-judicata, when it was alleged to have been obtained through the guardian's gross negligence ; and it is not clear that the same considerations arise on the latter question as on the former. The other case mainly relied on was Khiarajmal v. Daim I.L.R.(1904) Cal. (296) and in it the Judicial Committee no doubt referred to decrees obtained and sales held when the persons directly concerned were not parties to the proceedings or properly represented as nullities. But the question is then what constitutes proper representation their Lordships not dealing with the point further except by reference to Kishen Chunder Ghose v. Mussammat Ashoorun (1863) Mars647 in which there was no representation at all. On the other hand in Walian v. Banke Behari Pershad I.L.R. (1903) Cal. 1021 it was pointed out that a defect in following the rules as to representation of minors was not necessarily fatal to the proceedings. We are not in the circumstances prepared to hold that any possible adverse interest on the part of the mother rendered the decree against the present plaintiffs, the minors, a nullity. It therefore has to be set aside and the present suit is out of time.
3. Next it is argued that this suit should have been regarded as one against the 2nd to recover from him the ad vantage, which he has realised as implied trustee for the plaintiffs during their minority. It is not necessary to set out in detail the facts, on which this plea is based, nor to deal with it on its merits, because it was not in our opinion relied on in the Court of first instance and we are not prepared to consider it for the first time in Second Appeal.
4. Lastly the suit has been held barred, on the assumption that time ran from the date on which the elder of the plaintiffs attained majority, consistently with Doraisami Serumadan v. Nondisami Saluvan I.L.R. (1912) Mad. 118 Reference has been made to Nobin Chandra Barua. v. Chandra Madhab Barua I.L.R. (1916)Cal. 1 in which (it is said) a plea of limitation was disallowed in similar circumstances. There however, perhaps with reference to the Dhaya-bhaga law, the elder of the plantiffs concerned was held not capable of giving a discharge and that case must be distinguished on that ground.
5. The Second Appeal is dismissed with costs.