1. This is an appeal by the defendant against the decree of the lower Appellate Court holding that the sale of item 13 in the suit is not binding on the plaintiff on the ground that he was a major when the execution proceedings were token against him. The first point taken is that a purchaser is entitled to assume that when an interest is sold everything has been done to make it available and reliance is placed on the wall-established doctrine that a bona fide purchaser at a sale under a Court decree which is subsequently reversed is not affected by the reversal [vide Narendra Chandra v. Jogendra Narain (1914) 20 C.L.J. 469, and also on the principle that where an estate has been represented by a person bona fide believed to be the true representative the decision will (in some circumstances) bind the true representative: vide The General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Sing (1872) 14 M.I.A. 605. The latter principle has in my opinion no analogy, for there is no question of legal representatives here. While the former doctrine is founded not on any question of parties, but on the right of a stranger to assume that a decree given as between parties is conclusive of their rights, it cannot be extended to cases where the proper parties have not been before the Court. The real question is, 'Was the plaintiff a party to the suit at the time that the decree was given and if not was it the fault of the decree-holder that he was not?' I lay stress on the position 'at the time of the decree' because I am satisfied that if the majority of the plaintiff had occurred after the decree we could have treated the notice of the execution proceedings to the guardian instead of to the plaintiff as a mere irregularity on the authority of the Privy Council in Malkarjun v. Narhari I.L.R. (1900) 25 Bom. 337 and the suit would have to be dismissed under Article 12 of the Limitation Act. But the same case is authority for the proposition that where the Court took proceedings wholly without jurisdiction a defendant who was not before the Court could treat them as a nullity and remain unaffected by them. He would therefore not have no set aside the sale and so Article 12 would not operate in limitation. We are asked by Mr. Prakasam to apply the analogy of a minor being sued as a major or of a minor being represented by a person not competent to act as a guardian ad litem [as to the latter vide Sham Lal v. Ghasita I.L.R. (1901) All. 459 and Ganesha Row v. Tuljaram Row I.L.R. (1913) Mad. 295 a decision of the Privy Council.] In my opinion we should not do so. Courts are always jealous of the rights of minors and insist on the most scrupulous care being taken to see that they are properly represented (compare the English practice of giving a minor an opportunity of attacking a judgment of foreclosure or on a will obtained against him on attaining majority). The question in this case must be decided on other considerations. Now it is noticeable that Order XXXII which deals with suits by or against minors is silent on this point. Rules 12, 13, 14 provide the course to be followed by a minor-plaintiff on attaining majority, but nothing is said about a minor-defendant in the same, position. Rule 12 provides that the minor-plaintiff shall, on attaining majority, elect. The only assistance to be gained from this rule is that it suggests that the suit cannot proceed in the name of a next friend after the minor has attained majority. I do not think, however, that this rule is baaed on a law of procedure as to parties. In my view, it arises out of the right of a major to exercise his own discretion as to whether he will continue the suit. Turning to the English practice we find that Order XXVI, part III, which deals with persons under disability is also silent on this point, and I cannot find in any book on Practice any reference to procedure by way of alteration of the record where a minor defendant attains majority or a lunatic becomes sane pending the disposal of the suit, though the practice permits a minor defendant on coming of ago to apply to amend his defence (vide Daniell'a Chancery Practice, page 114). Turning to the English Cases the earliest bearing directly on the point is Powys v. Mansfield (1836) 6 Sim. 637, There the minor came of age on 8th February. Judgment was given against him on 23rd February and a decree was drawn up on 27th April treating him as an infant and giving a day after majority to show cause. The fact of his majority was not disclosed till ha made a motion in accordance with the permission, The Vice-Chancellor after reserving the point held that the decree having been passed when ha was a major he had no right to show cause. It was never even suggested in argument that the decree was without jurisdiction. The next case is Davits v. Dowding (1838) 2 Keen 245where a decree was given in a mortgage suit in which an infant was a defendant but with a direction for an enquiry whether it would be for the benefit of the infant that the property should be sold. It was subsequently ascertained that the infant had attained majority some time previous to the date of the decree. The mortgagee then asked for a sale without an enquiry. The Master of the Rolls held that it was the defendant's own default that he did not on attaining age make a new defence or apply for leave to redeem; he therefore ordered a sale as prayed. Here again it was never argued that the decree was a nullity. Snow v. Hole (1846) 15 Sim. 61 does support the respondent's contention for there where judgment was given in terms against a minor whereas in fact she had attained majority, the Vice-Chancellor uses the phrase 'I must consider there was no decree against har,' but in that case notice had been served on the solicitor for the minor to hear judgment; he had returned to the plaintiff's solicitor stating that his client had attained majority and that he had no instructions; so the notice was bad. In spite of that the decree was drawn up as if she had bean properly served. The Vice-Chancellor gave her leave to make a new defence but on paying costs 'as it was in the nature of an indulgence.'
3. I cannot but regard his order as inconsistent with the view that there was no decree against her and it is further to be noted that he did not refer to his decision in Powys v. Mansfield (1836) G Sim. 637 clearly taking the other view; the report also may be inaccurate. There is therefore ample authority in England for holding that the decrea is not without jurisdiction. The only Indian case is Ramachari v. Duraisami Pillai I.L.R. (1898) Mad. 167. There one of the defendants was treated as a minor in the mortgage suit though he was a major at its institution. The lower Court having returned a finding that he was aware of the suit from its beginning and allowed it to proceed against him he was bound by the decree and could not impeach the sale on the decree. That is strong authority against the theory of nullity. In the light of the above decisions I am satisfied that whatever rights the respondent had to apply to set aside the decree he cannot treat it as made without jurisdiction and in consequence his suit is barred by Artice 12. This appeal will therefore be allowed with costs.
Sadasiva Ayyar, J.
4. I am also of opinion that the decree in Original Suit No. 145 of 1904 and the execution sale held therein were not pissed and held without jurisdiction so far as the plaintiff's interests were concerned. I further agree that the present suit to set aside the sale is barred by limitation and I concur in the order proposed by my learned brother.