Raghava Rao, J.
1. This appeal is by the plaintiff in a suit for recovery of possession of properties of which respondent 2's father became purchaser in execution of a small cause decree obtained by him against the plaintiff's father. The plaintiff's complaint is that the execution of the decree levied in respect of the suit properties which had become the plaintiff's under a settlement deed between the plaintiff, his father and his paternal uncle is not binding upon him. Prior to the present suit, there was an earlier one by the plaintiff represented by his mother as his next friend for the same reliefs in which the question of the real or nominal character of the settlement was gone into. The learned District Munsif who tried that suit decreed it holding that the settlement was real and operative. On appeal taken by the present respondent that decision was reversed, without the mother of the plaintiff on whom notice had been served as the guardian ad litem of the plaintiff appearing. The present suit is by that very plaintiff for the very relief which the appellate Court on the former occasion had refused him. The suit has been dismissed by both the Courts below on the ground that the mere non appearance of the mother in the appeal in the former suit does not necessarily give rise to an inference of gross negligence, that the appellate decree in the former suit is not a nullity, and that the present suit without a prayer for the setting aside of the former appellate decree does not lie.
2. I have after the careful consideration bestowed by me on the case since reservation of judgment arrived at the conclusion that this appeal must fail. I am not satisfied as clearly as the lower appellate Court that the failure of the plaintiff's mother to appear in appeal in order to sustain the judgment and decree of the trial Court which had gone in favour of the plaintiff was because she 'might have thought that she would serve the interests of her son best by not appearing in the appeal.' It is true that, as pointed out by the lower appellate Court.
'it is not in every case that a minor's guardian is bound to put forward contentions, though untenable in order to show that he was diligently prosecuting the case on behalf of the minor.'
It may be that so far the learned Judge is supported in his view by the observations in Visweswara Rao v. Surya Rao : AIR1936Mad440 , Daiva Ammal v. Ramanuja Naicker : AIR1936Mad479 and Zarina Bibi v. Wazuddi, 59 Cal. 1108 : A. I. R. 1932 Cal. 888. But then, it is undeniable that there is always a risk in the case of a respondent in a Court of appeal who does not appear that in his absence the bearing of the case may produce a result in reversal of the judgment of the trial Court. It would be incumbent upon the guardians of a minor respondent in an appeal, in order to avert such a result, unless the respondent's means did not permit the guardian to do so, to engage a pleader to support the judgment of the Court of first instance or at least to appear by himself or by herself as the ease may be, before Court in order to watch how the case as presented by the appellant might fare and take such further steps as necessary for the representation of the respondent's case to the Court. Whatever the propriety of the inference against gross negligence which has been made by the Courts below may be, I am of opinion that the decree sought to be attacked is only voidable on proof that the conduct of the plaintiff's mother has injured him in the sense that it resulted in a reversal of the judgment of the trial Court which could otherwise have been avoided. The decree being voidable, the present suit is, in my opinion, defective for want of a proper prayer for its avoidance.
3. The cases cited for the appellant from Maheshchandra v. Manindra Nath : AIR1941Cal401 and Ramanathan Chettiar v. Palaniappa Chettiar, 57 Mad. 973: A. I. R. 1934 Mad. 386 do not, in my judgment, assist him. The former of the rulings only lays down that
'the failure on the part of the guardian to defend a suit when there is a perfectly good defence available which results in a serious loss of right to the minor amounts to gross and culpable negligence.'
Whether a decree vitiated by such negligence is void or voidable is not considered there. Nor is Ramanathan Chettiar v. Palaniappa Chettiar, 57 Mad. 973 : A. I. R. 1934 Mad. 386, in point. There, no guardian for the minor was at all appointed, and the compromise entered into on behalf of the minor was without leave of Court. Dwarka v. Sitla Pd. : AIR1940All256 relied on for the appellant is no doubt in his favour; but then, there is Mohammad Baksh v. Allah Din, , cited for the respondents which is to a contrary effect. I am inclined to think that the latter represents the correct view which is that a decree against a minor vitiated by gross negligence of the guardian on record is only voidable and not void. The Courts below in the present case were not satisfied that a different result in that appeal on the former occasion could have been produced, had the mother of the plaintiff actually appeared. I am not prepared to say that they were wrongly not so satisfied. Further, the present suit instituted without a prayer for setting aside the former appellate decree which is only voidable is out of order, and its dismissal by the Courts below on this ground also must be regarded as correct.
4. In the result, the second appeal fails and is dismissed with costs. No leave.