1. This appeal is preferred by four minor plaintiffs whose suit to set aside an ex parte decree and a consequent sale of their property in execution has been dismissed by the Subordinate Judge of Midnapur, confirming the decree of the Munsif. On 23rd December 1904, the Midnapur Zemindari Company Ltd., (defendant No. 1 in this case) obtained an ex parte decree for Rs. 5-14 as. 18 gandas rent alleged to be due from the defendants. The defendants were the first three plaintiffs in the present suit and their co-sharers Sridhar Mahato, Hari Charan Mahato and Arun Mahato. The first three plaintiffs are sons of Nemai Mahato, a brother of Sridhar, and Sridhar was the guardian ad litem proposed by the plaintiff Company. No order appears to have been made appointing him guardian nor was his consent ever obtained to such appointment. On 12th December 1904, the defendants were absent and the case was on the plaintiff Company's petition adjourned to 23rd December for ex parte trial, when the decree was passed as above stated. In execution, the holding was put up for sale and bought by the plaintiff Company for Rs. 200, the real value being about Rs. 1,000. Some time later in 1906, Sridhar Mahato, purporting to act on behalf of himself and his three minor nephews, applied under Section 108 of the Civil Procedure Code, 1882, to set aside the ex parte decree. That application was dismissed on 3rd September 1908 as barred by limitation. He also applied under Sections 244 and 311 to set aside the sale on the ground of fraud and irregularity. That matter was carried up to this Court on appeal but the appeal failed and was dismissed on 1st April 1908.
2. On 3rd March 1909, the present suit was filed, Rajendra Mahato acting as next friend of plaintiffs Nos. 1-3 and Dhira Mahato as next friend of her son, Brojopati.
3. As regards this last plaintiff, the learned Pleader, who appears for all the plaintiffs, concedes that the original decree having been made against his father, Arun Mahato, he cannot succeed in these proceedings. His appeal fails and is dismissed, but we make no order for costs against him.
4. As regards the plaintiffs Nos. 1-3, the only point arising on this appeal is whether they were properly represented in the rent suit. If they were not, the decree, so far as it was directed against them, must be regarded as a nullity and the sale of their share in the holding in execution must be taken to have been made without jurisdiction and invalid as against them.
5. For the respondents, reliance was placed on a decision of the Judicial Committee of the Privy Council in Bibi Walian v. Banki Behari Pershad Singh 30 C. 1021; 5 Bom. L.R. 822; 7 C.W.N. 774; 30 I.A. 182 but each case must be decided upon its own facts, and the facts here are very different from the facts in that case. There it was found that the mother of the minors had effectively represented them throughout the proceedings. The only defect was the absence of a formal order of the Court appointing her as guardian. Here the circumstances are very different. There was no order appointing Sridhar Mahato guardian ad litem nor did he ever give his consent to act. There does not appear to have been any effective representation of these minors at any time, certainly not until after the sale of their property had taken place. The decree was for a very small amount, only Rs. 5-14-18 gandas and costs, which could easily have been raised and paid on the minor's behalf. Instead, of that the property, in which they were sharers, said to be worth Rs. 1,000 has been sold for Rs. 200. The action of Sridhar Mahato in endeavouring to set aside the ex parte decree under Section 108 and the sale under Sections 244 and 311 was not in the interests of the minors, though it might be the only appropriate remedy for himself. For the minors it should have been brought to the notice of the Court that they had never been represented throughout the proceedings, and that they could not, therefore, be bound by what had taken place. The want of representation is not a mere irregularity but a matter of substance. See Khiarajmal v. Daim 32 C. 296; 2 A.L.J. 71; 1 C.L.J. 584; 7 Bom.L.R. 1; 9 C.W.N. 201; 32 I.A. 23. We may also refer to a decision of this Court which supports the view we now take, Balkishan Lal v. Topeswar Singh 15 C.L.J. 446 at p. 449; 14 Ind. Cas. 845; 17 C.W.N. 219.
6. For these reasons, we hold that the judgments and decrees of the Courts below cannot be supported. They must be set aside and a decree entered for plaintiffs Nos. 1, 2 and 3 with costs in all the Courts.