1. This is an appeal by the defendant against the decree of the lower Appellate Court, holding that the sale of item 18 in the suit is not binding on the plaintiff on the ground that he was a major when the execution proceedings were taken 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 well-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 the case quoted in Krishna Chandra Mandal v. Jogendra Narain Roy 27 Ind. Cas. 139 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 General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Singh 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 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 25 B.k 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 a 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 to 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 23 A.s 459 and Ganesha Row v. Tulja Ram Row 19 Ind. Cas. 515, 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 suit's 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 based 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 XVI, 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 age to apply to amend his defence (Vide Daniel's Chancery Practice, page 114).
2. Turning to the English cases, the earliest bearing directly on the point is Powys v. Mansfield 6 Sim. 637. There the minor came of age on February 8th. Judgment was given against him on February 23rd and a decree was drawn upon April 27th treating him as an infant and giving a day after majority to show cause. The fact of his majority was not disclosed, till he made a motion in accordance with the permission. The Vice-Chancellor after reserving the point held that the decree having been passed when he 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 Davis v. Dowding (1838) 2 Keen 245 where 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 sometime 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. The case of Snow v. Hole 15 Sim. 161 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 her', but in that case notice had been served on the Solicitor for the minor to hear judgment: he had returned it 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 it she had been 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.' 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 6 Sim. 637 clearly taking the other view--the report also may be inaccurate. There is, therefore, ample authority in England for holding that the decree is not without jurisdiction.
3. The only Indian case is Ramachari v. Duraisami Pillai 21 M.k 167. There one of the defendants was treated as a minor in the mortgage suit though he was a major at his 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.
4. 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 Article 12. This appeal will, therefore, be allowed with costs,
Sadasiva Aiyar, J.
5. I am also of opinion that the decree in Original Suit No. 145 of 1904 and the execution sale held therein were not passed 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.