1. This is an appeal in a suit to set aside a mortgage-decree and the execution sale consequent thereupon, on the ground that the decree was made under Circumstances which render it inoperative as against the plaintiffs appellants. There is no dispute as to the facts which have given rise to this litigation. The defendants instituted a suit against the plaintiffs to enforce a mortgage-bond alleged to have been executed by their father. When the suit was instituted on the 25th May 1905, the present plaintiffs, then defendants, were infants. The Court directed the plaint to be registered. As the defendants were infants and as the plaintiffs had proposed their mother for appointment as guardian ad litem, the Court recorded an order to the following effect: 'Issue notice to the minors and the guardian, fixing the 17th July for appointment of the guardian.' On the l7th July, the mother did not enter appearance or signify her willingness to accept the office of guardian ad litem of her infant sons. The Court thereupon proceeded to record the following order: 'The defendants are absent, Protap Chunder Mozumdar witness for the plaintiffs is examined and Exhibit' I is used as evidence on behalf of the plaintiffs. According to the reasons given in the judgment, the suit is decreed with costs.' To use the words of Mr. Justice Trevelyan in Dakeshur Pershad Narain Singh v. Rewat Mehton 24 C. 25 : 12 Ind. Dec. (N.S) 681. it is difficult to conceive of a case where the formalities of law have been more neglected than in the present instance. When the proposed guardian did not enter appearance and accept the office, the duty of the Court was to appoint one of its officers to act as guardian ad litem for the infants. The Court not only omitted to take this essential step, but proceeded to decide the case, although the 7th July 1905 had been fixed, not for the disposal of the suit, but for the appointment of a guardian ad litem for the infants. In execution of the decree so made, the properties of the infants were subsequently brought to sale and were purchased by the decree-holders themselves. The plaintiffs now seek to have the decree and the execution sale cancelled on declaration that the decree was inoperative as against them. In our opinion, there is no answer to the Suit.
2. The Subordinate Judge has placed reliance upon the decision of the Judicial Committee in the case of Walian v. Banke Behari Pershad Singh 30 C. 1021 : 30 I. A. 182 : 7 C. W. N. 774 : 5 Bom L. R. 822 : 8 Sar. P. C. J. 512 (P. C.) which is dearly distinguishable. There the Judicial Committee held that the proceedings in the earlier litigation showed, on the face of them, that the infants were represented by a properly appointed guardian, although no recorded order of appointment could be traced. In these circumstances, and in the absence of the records of the earlier suit (which had apparently been destroyed), the Judicial Committee ruled that the mere absence of an order to the effect that the mother was appointed, guardian ad litem did not invalidate the proceedings. In the case before us, on the other hand, the facts are well established.
3. The mother was never appointed guardian ad litem of the minor; indeed, she never entered appearance; and the Court proceeded to decide the suit on a date which had been fixed for the appointment of a guardian and not for the final disposal of the suit, In our opinion, this decree must be treated as a decree made against persons who were not represented in the suit and who consequently occupy the same position as if they were not parties to the litigation. This view is supported by the decision of this Court in Narsing Narain v. Jahi Mistry 13 Ind. Cas. 414 : 15 C. L. J. 3. and is also in conformity with the decision of the Judicial Committee in Rashid-un-nisa v. Mohammad Ismail Khan 3 Ind. Cas. 864 : 10 C. L. J. 318 : 13 C. W. N. 1182 : 6 A. L. J. 822 : 11 Bom. L. R. 1225 : 6 M. L. T. 279 : 19 M. L. J. 631 (P. C.). The latter case shows that where infants have not been represented by a guardian duly appointed and competent to represent them for the purposes of the litigation, the decree made against them must be deemed inoperative in law.
4. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the suit decreed with costs in all the Courts. It is declared that the decree, made in the mortgage suit is not operative as against the plaintiffs-appellants and must stand cancelled. The consequence will be that the mortgage suit will stand revived and the mortgage will be entitled to proceed therewith in accordance with law. The sale consequent on the decree will also stand cancelled and the plaintiffs will be forthwith restored to possession of the property in suit, in execution of the decree of this Court.