1. This is a suit by two minors, represented by a next friend, to set aside the adoption of the second defendant, who is also a minor. The second defendant's natural father was appointed guardian ad litem on the 28th September 1906. The issues were settled on the 5th October 1906 and the case was posted for final hearing to the 27th November 1906. In the meantime there was an application by the second defendant's guardian for an order to place him in funds directed against the plaintiff's next friend. Such an order was made by the Subordinate Judge apparently accepting the guardian's statement that he was unable to defend the suit as no funds are available to him. But the plaintiff's next friend on the 27th November 1906, the day fixed for final hearing, put in a petition stating that he was unable to find funds as he himself was only the next friend of the minors, and he prayed that the second defendant's guardian might be discharged or that the suit might be stayed until the attainment of majority by the minor plaintiffs. The Subordinate Judge on the 1st December simply recorded this petition. He apparently called upon the second defendant to argue the question as to what was to be done under the circumstances. This argument was closed on the 6th December 1906 but no order was passed by the Subordinate Judge until the 8th March 190. On that date he came to the conclusion that he could not dismiss the suit because the funds required for enabling the second defendant's guardian to contest the suit had not been paid into Court by the plaintiff's next friend and directed that the case should be set down for trial on the 25th March 1907. According to an affidavit by the pleader for the defendant in the Court below, it appears that this order was pronounced in the absence of the pleader and his client. On the 25th March 1907, the date fixed for the taking of evidence, the second defendant filed a petition asking that he might be discharged from the guardianship as he was unable to find funds for the conduct of the case.
2. Under these circumstances we think the proper order, the Subordinate Judge should have made, was to discharge the second defendant's guardian under Section 458 of the Old Code of Civil Procedure and to appoint a fresh guardian in his stead. He proceeded, however, to try the case, but there were no witnesses on either side and no documents filed. As the onus was on the defendant, the Subordinate Judge dismissed the plaintiffs' suit. We think the Subordinate Judge was wrong in adopting this course. We set aside the decree of the Subordinate Judge and remand the case for disposal according to law. If the second defendant's guardian expresses his inability to find funds for the conduct of the suit, the Subordinate Judge will pass an order discharging him from guardianship and appointing a fresh guardian in his stead for the conduct of the case. Costs hitherto incurred will be provided for in the decree that may be passed in the suit.