1. This is an appeal against an order of the District Judge of Tipperah by which he has set aside an order of the Subordinate Judge of Tipperah and proceeding under Order XLI, Rule 23, has directed the trial Court to re-admit the suit and proceed to determine it on the merits.
2. There were two minor defendants in the case, they having been substituted as defendants on the death of their father. The point taken before the learned District Judge was that in the trial in the first Court the minors had not been properly represented. It appears that on the death of the father when they were substituted as defendants, they were represented by the plaintiffs to be persons of full age. Thereupon the mother, who has now appeared as defendant 1 ka, appeared and filed a written statement in which she sets out her defence to the suit and at the same time intimates that the two defendants to whom I have referred have been improperly described as majors and were in fact minors. She further represented that the suit could not proceed against them without service of proper notice upon there and without appointing a proper guardian. Of this apparently at the moment no notice was taken, but eventually on the 30th November the Subordinate Judge, it being then admitted by the plaintiffs that these two defendants were minors, made an order appointing the mother their guardian. This he did without notice to the minors and without further notice to the mother, and the suit thereupon proceeded notwithstanding, the fact that the learned Pleader who appeared for the mother definitely intimated to the Court that his client did not accept the position of guardian for her two minor sons and that he was not prepared to conduct the case on their behalf. From these facts it is clearly apparent that the provisions of Order XXXII, Rule 3(4), which imperatively require that notice should be served upon the minors have not been complied with. Further in face of the representation made by the Pleader that he did not accept this appointment on behalf of his client, the mother, it appears to me that the Judge was clearly right in holding that the minors had not been represented and were, properly speaking, no parties to the suit. Moreover, at the hearing of this appeal a further difficulty has been disclosed. By his order the learned District Judge set aside the decree which had been made by the Subordinate Judge against the minor defendants. In this appeal the plaintiffs-appellants have not made those minors parties, that is to say, they in effect apply to this Court to have the decree against the two minors restored without making those minors parties to the appeal. Such a defect as this cannot be overlooked, and on both these grounds in my opinion this appeal fails and must be dismissed with costs. We assess the hearing fee at three gold mohurs.
3. The appeal being disposed of the Rule No. 361 of 1916 is discharged without costs.
Shamsul Huta, J.
4. I agree in dismissing the appeal on the ground that the minors have not been made parties to it. The mother is made a party respondent only in her personal capacity. I, however, think that on the merits the lower Appellate Court was wrong in holding that farther notice on the minors was necessary. The minors in this case had notice of the suit, although they were wrongly described as majors. The mother, who is their natural guardian and under whose care they live as appears from the affidavit filed by the plaintiffs, appeared and filed a written statement for herself and for the minors through a Pleader. Then there was a formal order of the Court appointing her as guardian of the minor defendants. In my opinion the mother by appearing in the suit for herself and for her minor children consented to act as guardian of the minors and the order appointing her as such guardian was quite correct. At one stage of the suit it appears that the Pleader appointed by the mother for herself and her minor children filed a petition stating that without serving notice on the minor defendant no guardian can be appointed for them. As I have said, there was notice on the minor defendants, although they were wrongly described as majors I think, therefore, the first Court was right in not taking any action on this objection and I hold that the judgment of the Appellate Court was wrong on the merits. But the appeal ought to be dismissed on the first ground I have stated.