1. This appeal arises out of a suit for a declaration that the decree obtained by the defendant No. 1 in a contribution suit was void and inoperative as against the plaintiffs and that the sale held in execution of that decree was not binding upon them.
2. In that suit the present plaintiffs were desorbed as minors represented by their certificated guardian, the defendant No. 2. It appears, however, that when the defendant No. 2 applied for certificate of guardianship, the Court ordered that he might be appointed guardian provided he furnished security to the extent of Rs. 2,000. This security was never furnished by defendant No. 2, nor did he ever take out a certificate of guardianship. The defendant No. 2 was not appointed a guardian ad litem. The question is whether under these circumstances the plaintiffs can be said to have been properly represented by defendant No. 2 in that suit J The Courts below have concurred in answering the question in the negative and the defendant No. 1 has appealed to this Court.
3. Two contentions have been raised in this Court. First, it is contended that the mere fact that security had not been furnished or that the certificate had not been taken out does not go to show that the defendant No. 2 was not the certificated guardian. Reliance has been placed on the judgment of the Judicial Committee in the case of Mungniram Marwari v. Gursahii Nand 17 C. 347 : 16 I.A. 195 (P.C.) 5 Sar P.C.J. 462.
4. That case, no doubt, lays down that 'when a Court to which application has been made under Section 3 of Act XL of 1858 for certificate, has adjudged the applicant entitled to have, one, he then substantially obtains it although it may not be drawn up...at the time. Hiving obtained such an order, he has in substance complied with the terms of the Act in the same way as when a plaintiff has judgment that he shall have a decree in his suit, it may be said that he has then obtained his decree.' That case, however, is distinguishable from the present; because in that case the order granting the certificate was not a conditional order. The applicant in that case had done all that was necessary to be done, and all that remained was that a formal certificate appointing him guardian was not drawn up. In the present case the order appointing him was conditional upon his furnishing security to the extent of Rs. 2,000. This was not given by the defendant No. 2 and, therefore, the certificate could not be issued to him.
5. The next contention is that although there was not formal order appointing the defendant No. 2 guardian ad litem, it was merely an irregularity because the defend* ant No. 2 appeared in the proceedings as guardian of the minors. We are referred to the case of Walian v. Bankey Behari Pershad Singh 30 C. (sic) (P.C.) : 30 I.A. 182 : 7 C.W.N. 774 : 5 Bom. L.R. 822 : 8 Sar. P.C.J. 512 where it is pointed out that under Section 443, Civil Procedure Code (Act XIV of 1882), the Court is bound after satisfying itself of the fact of minority to appoint a proper person to act on behalf of a minor in the conduct of a suit : and this rule should be strictly followed, but where the Court by its action has given its sanction to the appearance of a person as such a guardian, the absence of a formal order of appointment is not necessarily fatal to the proceedings. Bat in that ease the mother of the minor defendants appeared throughout the proceedings in the suit as their guardian, the Court admitted the plaint in which she was described as guardian, and in the decree and execution proceedings the Court so described her and although no formal order appointing her guardian ad litem was drawn up, it was held that the minors were effectively represented in the suit by their mother and . with the sanction of the Court, The absence of formal order in that case appointing her guardian ad litem was merely an irregularity of procedure, as there was nothing to suggest that the interests of the minors were not duly protected : the defect in the procedure did not prejudice them and, therefore, the error was not fatal to the suit. In the present case, however, it has been clearly found by the Courts below that the minors had been seriously prejudiced, that the defendant No. & did not protest the interests of the minors, that he was under the influence of defendant No. 1, that property worth Rs. 1,000 had been sold only for Rs 50 and that even assuming that the decree-holder took over the liability of paying the debts to the extent of Rs. 350, it does not appear that the minors were liable for that debt. It is further found that in the rent suit brought by the Maharaja of Bardwan against the defendant No. 1 and the plaintiffs, there was also the same defect. As a matter of fact the plaintiffs in that suit were described as minors represented by defendant No, 2 as their guardian (and not as certificated guardian). The learned District Judge points out that the contribution suit would have been dismissed as against the minors had the guardian of the present plaintiffs taken any appropriate defence. Having regard to the findings arrived at by the lower Appellate Court that the interests of the minors were not protected, we think that the non compliance with the provision of the Code cannot be treated in the way we are asked to do on behalf of the appellant, and that the appeal must be dismissed with costs.