1. This is a suit by a minor to set aside the decree passed against him in Original Suit No. 1165. of 1906, on the ground of fraud. That decree was passed both against the plaintiff and his father. The suit was for a debt due by the father in connection with a certain partnership transaction. The plaintiff in that suit, that is the defendant here, asked that the father should be appointed as guardian ad litem. The father refused to act as guardian; then, on the defendant's application the Head Clerk of the Court was appointed as guardian ad litem. The fraud charged in the plaint is that the defendant knew very well that the plaintiff was living with his mother under the protection of his maternal grandfather and that the maternal grandfather was a person fit and willing to act as guardian for the minor.
2. In other words, the charge is that the defendant was guilty of fraud by suppressing information which he had. The District Munsif dismissed the suit. On appeal, the Subordinate Judge reversed his judgment and set aside his decree. The Subordinate Judge's judgment proceeds on the ground that there was a deliberately false statement in the affidavit put in by the defendant in support of his application to appoint the Head Clerk as guardian ad litem. The statement referred to is that there was no fit and proper person alive who could be appointed guardian ad litem for the minor appellant in Original Suit No. 1165. This affidavit had not been put in evidence before the District Munsif but it was admitted by the Subordinate Judge. It is difficult to see how the statement that there was no fit and proper person, who should be appointed as guardian ad litem, could be regarded as deliberately false. It amounted to no more than a statement that in the view of the defendant, there was no one who was fit and proper to be appointed. The Court acted on that affidavit and appointed, the Head Clerk as guardian ad litem. It may be that the Court should have made further inquiry before acting on that affidavit and called upon the defendant to state what relations the minor had with a view to ascertain whether any of them would be fit and proper to be appointed as guardian ad litem. The appointment was the result of a judicial order based on evidence which the Court considered sufficient. If it was really insufficient, that is no justification for holding that the defendant was guilty of fraud. It is not alleged that there was any collusion between the Head Clerk and the defendant in pursuance of which the defendant applied for the appointment of that officer as guardian ad litem, nor is it alleged that the defendant induced the Head Clerk not to put in a defence. The proceedings in the suit were regular so far as they went, though it may be that the Court might have taken more care in making the appointment of a guardian ad litem. The case of Hanuman Prasad v. Muhammad Ishaq 2 A.L.J. 615 is not analogous to the present case. There the Court did not appoint any one as guardian ad litem. It was the duty of the plaintiff in the suit to get such appointment made. A relation of the minor interfered and conducted the proceedings but it was found by the Court that he acted with gross negligence. Two other cases were relied on for the respondent, viz. Ramchandra Das v. Joti Prasad (1907) A.W.N. 225 and Babaji bin Kusaji v. Maruti 11 B.H.C.R. 182. In these cases, the question arose in the course of the proceedings in which the guardian ad litem was appointed and the point that the Court had to decide was whether the appointment should be upheld. The present is a very different case. The plaintiff cannot, by a fresh suit, get the decree set aside unless either there was no appointment of a guardian ad litem at all or the appointment was induced by fraud or what the Court would regard as practically tantamount to fraud.
3. It is then urged that the Head Clerk, who was appointed as guardian ad litem, did not defend the suit but the ground on which the plaintiff came to Court was not that there was gross negligence in the conduct of the suit by the guardian ad litem such as would justify the Court in setting aside the decree. Consequently, no issue was framed on any such question nor does the Subordinate Judge base his judgment on that ground. We reverse the decree of the Subordinate Judge and restore that of the District Munsif with costs here and in the lower Appellate Court.