1. The facts which have given rise to these appeals are as follows. In execution of the decree in O.S. No. 759 of 1905 in the District Munsiff's Court of Tanuku obtained by one Gade Somanna against two minors named Venkamma and Nagamma and one Kotayya, the husband of the minor Nagamma on a pronote executed by Kotayya, the first defendant in the suit and the guardian of the minors, certain properties were sold and purchased in court auction by the appellant. The decree in O.S. 759 of 1905 was passed on 20-4-06. On 30-8-06 the defendants preferred a joint appeal A.S. No. 291 of 1906 to the Sub-Court, Ellore. At the time of the presentation of the appeal the minors were represented by their maternal grand-mother Satamma as guardian ad litem. Satamma, it appears died on 24-9-06 but this fact was not brought to the notice of the Court. On 6-3-07 the Subordinate Judge of Ellore directed that the evidence of a witness named Sitaramayya who had been summoned by the defendants but had not been examined should be taken by the District Munsiff of Tanuku. On 19-6-07 the District Munsiff returned the record to the Sub-court stating that no summons had been taken out to the witness and that the defendants' vakil said that he had no instructions. The Appeal was dismissed on 9-7-07. On 12-9-07. the decree-holder transferred his rights under the appellate decree to one Sithayya. During the execution proceedings Mangamma, the mother of the defendant Kotayya and the mother-in-law of one of the minors was appointed as guardian ad litem of the minors. The properties were sold in court auction in February 1908 and the auction purchaser took delivery on 30-8-08. The appellant brought a suit O.S. No. 270/09 in the Tanuku Munsif's Court for the recovery of the lands, which he had purchased in court auction alleging that the defendants had trespassed upon them and removed the crops and obtained a decree. The minors Venkamma and Nagamma also filed a suit O.S. No. 865/10 for a declaration that the decree obtained in O.S. No. 759/05 and the execution proceedings taken thereunder were not binding on them as they were not properly represented in the appeal, the guardian ad litem having died during the pendency of the appeal and the decree in A.S. No. 291--06 was obtained by fraud. The District Munsif held that the appellate decree was binding on the plaintiffs and dismissed the suit. On appeal the Subordinate Judge held that the decree which had been obtained against the minors who were not duly represented by a guardian was a nullity and that the sale and other proceedings taken in execution of the decree was void and allowed the appeals against the decree in O.S. No. 270 of 09 and O.S. No. 759 of 1905.
2. The learned Vakil for the appellant contends that the omission to get a next friend appointed for the minors was a mere irregularity and did not nullify the decree as the minors were effectually represented and their interests safeguarded by the first defendant, that the minors were duly represented by a guardian ad litem during the execution proceedings and that not having questioned the validity of the decree in A.S. No. 291 of 1906 during the execution proceedings the minors were estopped from questioning its validity as against a bona fide purchaser for value. I think that the decision of the Subordinate Judge is right and that no guardian ad litem having been appointed for the minors, the decree in A.S. No. 291 of 1906 is n6t binding on them and the sale which was held in execution of the decree must be regarded as void.
3. The question is I think really concluded by the decisions of the Privy Council in Khiarajmal v. Daim I.L.R. (1904) C. 296 and Rashid-un-nissa v. Muhammad Ismail Khan I.L.R. (1909) A. 572. s. c. 19 M.L.J. 631. In the former case it was held that where a minor was sued without a guardian ad litem being appointed, the decree and court sale which took place in execution of the decree were null and void, because in the absence of the proper representation of the minor, the court has no jurisdiction at all. In Rashid-un-nissa v. Muhammad I.L.R. (1909) A. 572. s. c. 19 M.L.J. 631 the suit was brought to declare the nullity as against plaintiff (of a sale?) in execution of a decree against a deceased person in which the minor plaintiff had been brought as the legal representative of the deceased judgment-debtor. In two instances he had been re-presented by a woman who as such was not qualified to act as guardian ad litem and in the third by another person whose interests were adverse. Their Lordships held that the plaintiff had never been a party to any of these suits in the proper sense of the term. The latest case of this Court Paydanna v. Lakshminarasamma I.L.R. (1914) M. 1076. s.c. 28 M.L.J. 525 is to the same effect. Reference may also be made to Dakeshur Pershad Narain Singh v. Rewat Mehton I.L.R. (1896) C. 25 Hanuman Prasad v. Muhammad Ishaq I.L.R. (1905) A. 137 and Daji Himat v. Dhirajram Sadaram I.L.R. (1887) B. 18. Order 32 Rule 10 C.P.C. provides that on the retirement, removal or death of a next friend, further proceedings shall be stayed until the appointment of a next friend has taken place. The provisions of the rule are imperative. The learned vakil for the appellant relies on certain observations of their Lordships of the Privy Council in Walian v. Banke Behari Pershad Singh I.L.R. (1903) C. 1021 In that case the mother of certain defendants appeared through-out the proceedings in the suit as their guardian, the court admitted the plaint in which she was described as guardian and in the decree and execution proceedings the court so described her. Their Lordships held that the Court was bound to appoint a proper person to act on behalf of a minor in the suit and that this rule should be strictly fallowed, but where the court has by its action given sanction to the appearance of a person as such guardian, the absence of a formal appointment order is not necessarily fata! to the proceedings. This case is plainly distinguishable from the present case. It is pointed out that the minors and 1st defendant Kottayya the husband of one of the minors raised a common defence to the suit that the promissory note was not genuine that they were represented by the same vakil at the hearing of the appeal and it is argued that their interests were duly protected and that there is no sufficient reason for disturbing a judicial sale which was properly conducted. We cannot assent to this contention. No guardian for the minors having been appointed, they were to all intents and purposes not parties to the appeal at all. That being so, the Court has no jurisdiction to sell the properties of persons who were not properly represented on the record and as against them the decree and sale were a nullity. No explanation is offered as to why Kottayya omitted to intimate the death of the minor's guardian, to the Court and get a new guardian appointed. It is significant also that the minors' properties alone were sold in execution and there is evidence that they fetched a very inadequate price.
4. In the result the appeals fail and are dismissed with costs.
Sadasiva Aiyar, J.
5. I agree. Mr. G. Venkataramiah for the appellant is, no doubt, right in his contention that the case of an unrepresented minor plaintiff differs in some respects from that of an unrepresented minor defendant. (See Kamalakshi v. Ramasami Chetti I.L.R. (1895) M. 127 and Order 32 Rule 2). The death of the next friend of a minor plaintiff does also not impose any duty on the defendant to apply to have a new next friend appointed though be has a right to do so (Order 32 Rule (1) and (2) ), whereas the death of guardian ad litem imposes no duty on the court itself to appoint a new guardian (Order 32 Rule 11(2). It might also be conceded that minor defendants who are appellants stand in some respects in the position of plaintiffs and the guardian ad litem of minor defendants-appellants is in some respects, in the position of the next friend of minor plaintiffs (Shapurji Hormasji v. Monosseh Jacob I.L.R. (1909) B. 871. But this is not so in all respects and for all purposes (See Venkatachandrasekhara Raz v. Alaka Rajamba Maharani I L.R. (1898) M. 187 where it was held that the guardian ad litem for the defendant in the Lower Court is alone entitled to appeal and nobody else could on the analogy of the next friend of a plaintiff prefer the appeal without a proper appointment of himself as guardian ad litem.) On the question we have now to consider, namely, whether a decree passed in appeal against minor appellants (who were defendants) is valid without their having been legally represented the above argument based on the differences in procedure in some respects between the cases of minor plaintiffs and minor defendants seems to me to be of no help. (See also Baghvan Dayal v. Param Sutch Das I.L.R. (1914) A. 179 and Moothethuth Kanari v. Hari Shenoy (1916) 19 M.L.T. 245. That execution proceedings took place under the decree (which is a nullity) without objection by the guardian appointed in such proceedings cannot validate those proceedings or the sale held under them as the appointment of a guardian in execution proceedings held without jurisdiction in respect of minors who were not parties to the decree is itself a nullity. The fact relied on by Mr. Venkataramiah (if it is a fact) that the Court and the decree-holder were ignorant of the minor appellants' guardian's death when the appeal was argued and decided has also no legal bearing on the question of the validity or nullity of the decree (See Purno Chandra v. Bejoy Chand (1913) 18 C.L.J. 18