Pande Satdeo Narain vs Ramayan Tewari and others

Das, J.—One Bissessar Prasad Pande died sometime in Jeth 1293, leaving behind him a widow Khikhinda Koer and two daughters, Radho Kuer and Lalta Kuer. The plaintiff is the son of Lalta Kuer and the suit out of which this appeal arises, was instituted by him to set aside a decree, dated the 13th December, 1909, and the sale of certain properties held in pursuance of the decree.

The material facts are these. On the 27th November 1896, Khikhinda Koer executed a mortgage-deed in favour of Polak Tewari, the father of Deonagar, defendant 1, to secure an advance of Rs. 1900 made by the latter to the former. On the 2nd May 1897, Khikhinda Koer divided the estate of her husband between her two daughters by a deed which is referred to as the deed of partition, and expressly provided that all the existing debts shall be paid by her two daughters in equal shares. On the 19th April 1909 Deonagar, the son of the original mortgagee, sued upon his mortgage and cited various persons as defendants to the action including Khikhinda Koer, Radha Koer and the plaintiff, his mother Lalta Koer having died shortly after the execution of the deed of partition. The plaintiff was cited as the third defendant and was described in the cause title as the minor son of Srimati Lalta Koer, daughter of Babu Bisseswar Prosad Singh through his father and guardian Hardeo Narain". The order sheet of the mortgage-suit shows that on the 20th April, the Court directed notice to issue for the appointment of guardian, and that on the 12th May 1909, the Court appointed Hardeo Narain as the guardian ad litem for the minor defendant, the plaintiff in this action. There was, however, no appearance on behalf of the minor defendant, and, on the 23rd December, 1909, the Court passed a mortgage-decree in favour of the plaintiff to that suit. On the 6th December 1910, the properties were put up for sale, and were purchased by the-decree holder, Deonagar. Deonagar (defendant 1) conveyed the properties to Baldeo Sahay (defendant 2) and Baldeo Sahay has granted a zarpeshgi in respect of some of the properties so conveyed to defendants 3 to 5. On the 1st November 1913, the plaintiff through his father as guardian applied for setting aside the ex parte decree. That application was refused by the trial Court on two grounds, first, on the ground that the summons had been duly served on the applicant, and secondly, on the ground that the application was barred by limitation. The plaintiff preferred an appeal from the order of the Court of first instance, and the appellate Court on the 8th February, 1913, dismissed the appeal on the ground that the application was barred by limitation. The present suit was then instituted on the 10th July 1916 for setting aside the ex parte decree dated the 23rd December 1909 and the sale held in pursuance of that decree and for consequential reliefs.

The material allegations in the plaint are, first, that none of the processes. in the suit or in execution were served on the plaintiff or on his guardian, secondly, that he was not properly represented in the mortgage-action, and no legal steps were taken for the appointment of a guardian ad litem, thirdly, that the proceedings were fraudulent from start to finish, fourthly, that there was no legal necessity in respect of the mortgage bond executed by Khikhinda Koer, and lastly, that his mother Lalta Koer paid her portion of the mortgage-debt together with interest thereon, and that, in pite of such repayment, the mortgagee "prayed for the sale of the properties of Lalta Koer and made the plaintiff defendant No. 3 in that suit."

The learned Subordinate Judge found the issue as to legal necessity in favour of the plaintiff; but he thought that the order of the appellate Court dated the 8th February 1913 operated as res judicata so as to prevent him from giving the appropriate relief to the plaintiff. In the result, he declined to consider whether summons had in fact been served on the plaintiff in the mortgage-action, and he dismissed the plaintiff''s suit. The view taken by the learned Subordinate Judge was obviously wrong; for it is settled law that, though a suit does not lie to set aside a decree and a sale in execution of such decree on the ground that none of the processes in the suit or in execution was served upon the plaintiff, such a suit is maintainable if the allegations in the plaint amount to an attack, not on the regularity or sufficiency of the service of summons or the proceedings, but on the whole suit in which the ex parte decree was obtained as being a fraud from beginning to end; 6 CWN 473 (Privy Council) . This Court, in appeal, remanded the case to the Court of first instance, for trial of the issue whether notice under O. 32, R. 3 was in fact served on the plaintiff and on his proposed guardian. The learned Subordinate Judge has taken further evidence, and his finding is that processes were not served on the plaintiff and on his guardian in accordance with law.

The first question that arises for our consideration is whether, on the allegations made in the plaint the plaintiff is entitled to have the decree of the 23 rd December 1909 and the sale held in pursuance of the decree set aside. I have said that a suit is clearly maintainable if the allegations made in the plaint amount to an attack on the whole suit in which the ex parte decree was obtained as being a fraud from beginning to end. But the question still arises, whether we have those necessary allegations in the plaint. The word "fraud" does indeed occur in the plaint. As a matter of fact, as is usual in this class of cases, there is an excessive use of that word; but, as has been pointed out, " With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated are insufficient even to amount to an averment of fraud of which any Court ought to take notice"-Willingford v. The Mutual Society 5 A.C. 697. A fair test, which was applied with great success by the Judicial Committee in Ganga Narain Gupta v. Tilukram (1888) 15 Cal. 588: 15 I.A. 119: 5 Sat 168 (P.C.) is to strike out from the plaint such words as "fraud", "deceit", "illegal and fraudulent acts" and so forth, of which there is always a great superfluity, and to see whether a case of fraud can be founded on what remains. If, after the process of ruthlessly striking out those words, we have nothing but an allegation of certain facts which might be unattended with any fraudulent or illegal purpose or character, it is plainly impossible to investigate a case of fraud.

Now what are the facts alleged in the plaintiff? First, that none of the processes in the suit or in the execution was served on the plaintiff or on his guardian, and secondly, that he was not properly represented in the mortgage action. I shall come to the rest of the allegations presently; but, the allegations which I am for the moment considering do not, standing by themselves, amount to an averment of fraud. There is nothing necessarily fraudulent in the failure to serve processes on a party to a suit or to take steps to have a guardian ad litem assigned to a minor; and, if the allegation does not necessarily raise a case of fraud, there is, in my opinion, no case of fraud to be tried between the parties. But although the Court will not regard an allegation that there was a failure on the part of the plaintiff to serve processes on the defendant as an allegation of fraud, the case will assume a different aspect if there are allegations in the plaint which suggest that there was no foundation at all for the suit or that there was a fair defence to the suit. Such allegations, if established, will instantly raise the presumption that the failure on the part of the plaintiff to serve processes on the defendant or to take steps to have a guardian assigned to the minor, was deliberate, and was part of a carefully planned campaign to snatch a decree in the absence of the defendant. It is necessary then to see, whether there are allegations in the plaint which suggest that there was no foundation for the suit which resulted in the ex parte decree or that the defendant (the plaintiff in the present action) had a fair defence to the suit.

The plaintiff asserts that there was no legal necessity in respect of the bond executed by Khikhinda Kuer; but clearly the defence was not available to the plaintiff. The plaintiff claims, not as the reversionary heir of Bissessar Prashad, but, under the deed of partition executed by Khikhinda Kuer, and, as the heir of his mother, Lalta Kuer. It will be remembered that Khikhinda Kuer partitioned the estate of her husband between her daughters, Radha Koer and Lalta Kuer. Both Radha Kuer and Lalta Kuer are parties to the deed of partition, Ex. Y, and are bound by the terms of the deed. The deed assumed that the executants had absolute interest in the properties which formed the subject matter of the partition, and it proceeded to give to the executants an absolute interest in the properties allotted to each of them. The 16th clause of the deed provided as follows:- "That all the debts existing up to this time shall immediately after the execution of this deed, be paid up by the second and third parties" that is to say, (by Radha Koer and Lalta Koer) "in equal halves, or they shall execute fresh deeds in favour of the Mahajans in their own names." There can be no room for doubt or controversy that Lalta Koer, the plaintiff''s mother, took upon herself half the liability in respect of all the debts that were existing at the time of the partition. The plaintiff, claiming as he does, under the deed of partition, and as the heir of Lalta Koer, cannot repudiate the debt; and it is worthy of note that it is not his case that the mortgage was not executed by Khikhinda Koer, or that she did not receive the full consideration in respect of the mortgage. In my opinion, the plea of "no legal necessity" was not available to the plaintiff as a defence to the mortgage action.

It was then asserted that his mother Lalta Koer paid her portion of the mortgage debt to the mortgagee together with interest thereon; and that, in spite of such payment, the mortgagee "prayed for the sale of the properties of Lalta Koer and made plaintiff defendant No. 3 in that suit". It will be noticed that there is no allegation that the mortgagee accepted the payment from Lalta Koer imfull satisfaction of his claim against her, and released the properties which, subsequent to the mortgage, were, by the deed of partition allotted to Lalta Koer. Such an allegation was, in my opinion, essential, if the plaintiff desired to raise a case of fraud against the mortgagee. The fact that Lalta Koer paid half the mortgage debt to the mortgagee was admitted by him in his plaint; but, it by no means follows that, because the mortgagee received half the mortgage debt from one in whom one half of the equity of redemption became vested subsequent to the mortgage, he necessarily consented to the integrity of the mortgage being broken up. He was entitled to look to every portion of the mortgaged properties for satisfaction, so long as any portion of the debt remained outstanding; and the fact that Lalta Koer paid her full share of the mortgage debt would be no defence to the mortgage action, unless it was alleged and proved that the mortgagee consented to the integrity of the mortgage being broken up and agreed not to pursue his remedy as against the properties which fell to the share of Lalta Koer.

There is one further point in the plaint filed in this suit which requires notice. It is alleged that there was collusion between the mortgagee on the one hand and Khikhinda Koer and Radha Koer on the other hand, and the suggestion is that Khikhinda Koer and Radha Koer "are secret partners" in the purchase of the properties. No case of collusion was argued in the Court below, and none has been found in favour of the plaintiff. The grounds of appeal do not raise such a case, and, in the arguments before us it was not suggested that there was a case of collusion to be tried between the parties. For the purpose of our decision, we may entirely ignore those allegations in the plaint which raise a case of collusion between the mortgagee and Khikhinda Koer and Radha Koer.

In my opinion, there was no defence to the mortgage action; and, even assuming that processes were not served on the plaintiff and on his guardian and that the plaintiff was not properly represented in the action, it cannot be said that there was fraud from start to finish or that the decree obtained by the mortgagee was obtained by fraud.

It was then argued that the decree obtained by Deonagar Tewari is a nullity so far as the minors are concerned, and that we ought to disregard it in these proceedings. The argument is, based upon two facts, each of which the appellant claims to have established in this suit. These facts are, first, that notice of the appointment of a guardian for the suit was not served on the minor and upon the guardian of the minor in terms of O. 32, R. 3(4) of the Code; and, secondly, that there was a distinct violation of the statutory provision contained in O. 32, R. 4(3) of the Code, in so far as Hardeo Narain was appointed guardian for the suit without his consent. On the evidence, it is impossible to say that the notices were, or could have been, served upon the minor and upon the guardian for the minor in terms of O. 32, R. 3(4) of the Code.

The learned Subordinate Judge has given good reasons for accepting the case of the plaintiff on this point; and I entirely agree with the conclusion at which he arrived. Nor am I prepared to say that there was not a violation of the provision of O. 32, R. 4(3) of the Code. That rule provides that no person shall without his consent be appointed guardian for the suit; but there is nothing in the rule which requires the Court to record the consent of the guardian in the proceedings of the suit. The order dated the 12th May, 1909, appointing Hardeo Narain as the guardian for the suit runs as follows:-"Notice for appointment of a guardian ad-litem served. No objection filed. Hardeo Narain is appointed guardian ad-litem for the minor defendant." The order as drawn up by the Court does not show that Hardeo Narain consented to act as the guardian; but neither does it show that he did not consent; although the form of the order suggests the inference that he was appointed guardian because he did not file any objection. I have myself little doubt in my mind that the Court proceeded on the assumption that it was competent to it to appoint Hardeo Narain as the guardian, if there was no objection by him. But such a conclusion must be more or less speculative in the absence of any provision in the Code requiring the Court to record the consent in the proceedings of the suit. But does it follow that, because there were defects in the proceedings of the suit, that the decree rendered by the Court ought to be regarded as null and void? The solution of the question has been rendered difficult by reason of the conflicting decisions of our Courts, and it is necessary to deal with the subject with care.

I think that a clear distinction exists between a judgment which is void and a judgment which is voidable. An erroneous judgment is a voidable judgment, for, the argument that a judgment is erroneous assumes both the regularity of the procedure and the jurisdiction of the Court to render it. An erroneous judgment is one which though regularly rendered, is contrary to law or facts and is therefore liable to be reversed by an appellate tribunal. An irregular judgment is also a voidable judgment; but the distinction between an erroneous judgment and an irregular judgment is this, that where as an erroneous judgment will always be reversed by an appellate Court, an irregular judgment will be reversed in appeal or ignored in a collateral proceeding only when it is shown that the irregularity in the proceedings has affected the merits of the case between the parties. A void judgment, on the other hand, is a judgment where there was a total lack of jurisdiction in the Court to render it. Such a judgment is a mere nullity. It is not necessary to set it aside. It can be completely disregarded whenever it is pleaded, either in support of a claim or in answer to a claim.

In order, then to establish that the judgment in the mortgage action is a mere nullity, it must be established that there was total lack of jurisdiction in the Court to render the judgment. But it is exactly in the conception of jurisdiction that there is unfortunately a great deal of confusion of thought. As was pointed out in Sukh Lal Sheikh Vs. Tara Chand Ta., and emphasised in Hriday Nath v. Ram Chander (1920) 48 Cal. 188: 81 C.L.J. 482: 24 C.W.N. 728: 88 I.C. 806 (F.B.) we must be careful to distinguish between the existence of jurisdiction and the exercise of jurisdiction. Where there does not exist any jurisdiction to try and determine the cause, the judgment is void, and it can be impeached collaterally. But where there does exist such a jurisdiction, but, in the exercise of the jurisdiction, the Court has acted illegally or with material irregularity, the judgment is voidable, and it can be vacated in an appropriate proceeding either by the Court which rendered it, or, under our Code, by the appellate Court, either in appeal or in revision. As was said in the cases cited, jurisdiction is the authority of the Court to hear and determine a cause. Now jurisdiction has been classified under different heads by different judges; but I think that we may take it that it falls under four different heads (1) territorial jurisdiction, (2) pecuniary jurisdiction, (3) jurisdiction of the subject-matter, and (4) jurisdiction of the person.

Now there is no doubt that, in the particular case, the Court had territorial, jurisdiction, pecuniary jurisdiction and jurisdiction of the subject matter. But it was argued that it had no jurisdiction over the appellant, as he was not regularly brought before it. It was contended that a Court acquires jurisdiction over a minor, if appropriate proceedings are taken under O. 32 of the Code and that, in so far as the Court neglected to take those proceedings, there was a total lack of jurisdiction in the Court to try and determine the cause as against the appellant.

I am wholly unable to accept the contention. Jurisdiction as to person is conferred on the Court by suing the person in a Court competent to try the cause as against that person, not by the mode which the Court adopts in bringing the person before the Court. The Court has authority to try a cause as against a person, if that person is sued, and in cases coming within S. 19, S. 20 and within the proviso to S. 16 of the Civil Procedure Code, if that person, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain within the local limits of its jurisdiction. Where the condition for the assumption of jurisdiction as against a person exists, the authority of the Court to try and determine the cause as against him is complete, and the mode which ''the Court adopts to bring that person before the Court affects the exercise of jurisdiction, and not its existence. I think this is clear from the numerous decisions which establish that the mere fact that summons is not served on the defendant does not render the judgment null and void. I cannot distinguish a case where summons is not served on the defendant from a case where notice under O. 32, R. 3(4) is not served on the minor and on the guardian of the minor. The service of summons in one case and the service of notice in the other are but modes of exercise of jurisdiction when the Court has already acquired the authority to hear and determine the cause. Nor does the contravention of the express provision of O. 32, R. 4(3) deprive the Court of the jurisdiction which it has already acquired over the cause. There are numerous decisions in the books which establish that a judgment will not be regarded as a nullity, although it has been rendered in direct contravention of. a statutory provision. It was held in Tassaduk v. Ahmad (1894) 21 Cal. 66: 20 I.A. 176 (P.C.), that the noncompliance with the requirement of S. 290 of the Code which provided that no sale shall take place "until after the expiration of at least thirty days in the case of immoveable property, calculated from the date on which the copy of the proclamation has been fixed up in the Court house of the judge ordering the sale", is a material irregularity, but that its effect is not to make the sale a nullity without proof of substantial injury to the judgment-debtor. In Malkarjun v. Narhari (1901) 25 Bom. 337: 37 I.A. 216: 2 Bom. L.R. 927: 10 M.L.J. 388: 5 C.W.N. 10 (P.C.), the question which the Court had to decide was whether a sale, which took place after notice had been wrongly served upon a person who was not the legal representative of the judgment-debtor''s estate, could be considered a nullity. What happened was that after the death of Nagappa, the judgment-debtor, the decree-holder applied for execution of the decree "against defendant Nagappa, deceased, by his heir and nephew Ramalinga". As it happened Ramalinga was not the heir of Nagappa, and he came and informed the Court that he was not the heir of Nagappa, that the daughters of Nagappa were the heirs, and that he was not in possession of the estate of Nagappa. The Court informed him that the application was not against his property, but against the estate of the deceased, and that, if his property should be attached, he would have his remedy after attachment. And so the sale took place, and the property was purchased by the defendants who happened to have a mortgage on the property. The suit in which the question arose was by the heirs of Nagappa, and it was a suit for redemption in which they ignored the fact that a sale had taken place and that, at that sale, the decree holders had purchased the property. In order to succeed, it was necessary for them to establish that the sale was a nullity; and the defendants contended that however erroneous the order of the Court might have been in directing the sale of the property in a proceeding, not against the heirs of Nagappa, but against strangers, the Court acted with jurisdiction, and it could not be said that the sale was a nullity. The argument advanced on behalf of the defendants was upheld by the Judicial Committee. "It is not disputed" said Lord Hobhouse in delivering the judgment of the Board, "that if the Court took proceedings wholly without jurisdiction the plaintiffs would remain unaffected by them, and two of the learned Judges below go the whole length of affirming that the execution Court had no jurisdiction. But a decree had been made, and partially, though to a minute extent, executed against Nagappa; and his estate was liable to make good the balance. To enforce this liability was within the jurisdiction of the Court. If a judgment debtor dies before full execution of a decree, the creditor may apply for execution against his legal representative. To receive that application is part of the Court''s jurisdiction. In point of fact the application made was against "the estate of Nagappa", and in another column Ramlingappa is named as his heir. The Court had jurisdiction to receive such an application and either to reject it as defective or to order some further proceeding. If Ramlingappa had actually been successor in title nobody could have objected to the regularity of the proceedings. If there had been a dispute who was heir or whether the property had or had not devolved upon the heir, it was for the Court to determine such matters for the purpose of the execution. If it had been found impossible to discover whether any representative of the deceased was in existence, it was for the Court to say what steps should be taken. All these matters, which might involve questions of nicety, were for the Court to decide. It is clear that the jurisdiction was not lost for the reason that the form of application might be open to exception. How was it lost afterwards? The Code goes on to say that the Court shall issue a notice to the party against whom execution is applied for. It did issue notice to Ramlingappa. He contended that he was not the right person, but the Court having received his protest decided that he was the right person, and so proceeded with the execution. In so doing the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be disturbed. The real complaint here is that the execution Court construed the Code erroneously. Acting in its duty to make the estate of Nagappa available for payment of his debt, it served with notice a person who did not legally represent the estate, and on objection decided that he did represent it. But to treat such an error as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law. Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possibly judge of such matters, even if he knows the fact; and that if he is to be held bound to inquire into the accuracy of the Court''s conduct of its own business, no purchaser at a Court sale would be safe. Strangers to a suit are justified in believing that the Court has done that which by the directions of the Code it ought to do." In Hriday Nath v. Ram Chundra (1920) 48 Cal. 188: 81 C.L.J. 482: 24 C.W.N. 728: 88 I.C. 806 (F.B.) the question for the consideration of the Court was whether as order for withdrawal of a suit with leave to institute a fresh suit under O. 23, R. 1 of the Code, where there is nothing to indicate that the Court was satisfied that the suit must fail by reason of some formal defect, could be regarded as an order without jurisdiction and therefore null and void. Mukharji, A.C.J. in delivering the unanimous opinion of the Full Bench pointed out that what was done in the exercise of jurisdiction could not be regarded as having been done without jurisdiction. It is needless to pursue the subject any further; for, though a discordant note has been struck here and there, the Indian Courts have recognised the principle that disobedience of any particular provision of the statute does not necessarily affect the jurisdiction of the Court to try and determine a suit.

In England, a judgment against a minor in which the minor did not appear, and no guardian was appointed, is regarded as a judgment irregularly obtained, and the Court which rendered the judgment has power to set it aside and all subsequent proceedings for irregularity without going into the question whether there was a defence on the merits. See Jorman v. Lucas 15 C.B.N. S. 474, Lustington v. Semell 6 Maddock 38, Hall v. Scotson 38 L.R. Ex. 85. But, under the Civil Procedure Code, "no decree shall be reversed, or substantially varied, nor shall any case be remanded, in appeal on account of any......error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court". I am not overlooking the fact that S. 99, Civil Procedure Code, deals with the power of the Court in appeal when any error, defect, or irregularity in the proceedings is brought to its notice; but I think that our Code had adopted the principle that, where the question is not one affecting the jurisdiction of the Court, but one affecting the regularity of the proceedings, the Court will not interfere unless there is a defence on the merits.

I have said that the mere fact that the Court has disobeyed any particular provision of the statute is not sufficient to establish that there was no jurisdiction in the Court to render judgment in the case. But where the disobedience leads to this result that, as a consequence of the disobedience, there is no proper party to the suit, the case is different. It is one thing to say that the Court has not adopted the appropriate procedure to require the attendance of a party before it; it is another and a different thing to say that, as a result of the disobedience of any particular provision of the statute, there is no proper party to a suit. The Court has no jurisdiction to render judgment against one who is not a party to the suit, though it has jurisdiction to render judgment against one who is a party to the suit but who has not been brought before it by reason of the failure on the part of the Court to follow the particular procedure laid down in the Code. The one affects the existence of the jurisdiction of the Court; the other affects the exercise of it. To take a simple case, a minor is not a party to the suit, unless he is represented in the record of the suit by a guardian competent to act as such. Where the record of the suit itself shows that the minor is wholly unrepresented, or that he is represented by a guardian disqualified, from acting as such guardian under the express provision of the statute, the result is that the minor is not properly a party to the suit, and a judgment rendered against the minor is without jurisdiction and null and void. But where he is properly a party to the suit, and he is properly a party if he is represented in the record by a guardian not disqualified from acting, the jurisdiction of the Court to try and determine the cause as against the minor is complete, and such jurisdiction will not be ousted on proof that the Court did not follow the appropriate procedure for the appointment of the guardian. In my opinion, it is the record of the suit that must decide the question of jurisdiction; and where the record, on the face of it, shows that the minor was properly a party to the suit, the judgment rendered in such a suit will not be declared a nullity in a collateral proceeding brought to impeach its validity; though it may be set aside if it is shown that the defect or the irregularity in the proceedings affected the merits of the case between the parties.

I think this was the view of the Judicial Committee in the case of 7 CWN 774 (Privy Council) which, in my opinion, is decisive of the case before us. The facts were these. In 1873, a mortgage was executed by one TiJakdhari Singh in favour of Wahid Ali to secure Rs. 8,000 advanced by latter to the former. Tilakdhari died in 1880 and in 1881, Mohammad Zahurul Haq the son of Wahid Ali brought a suit upon the mortgage against the sons of Tilakdhari, of whom the plaintiffs were minors. As a question was raised whether the minors were in fact sued, it is material to set out how the defendants were cited in the cause title. They were cited as follows: "Babu Gajadhar Pershad Singh, major son, and Musammat Moti Rani Koer, mother and guardian of Babu Sidhesser Pershad Singh, Babu Banke Behari Singh, Babu Awadh Behari Singh and Babu Birj Behari Singh, minor sons, heirs of Babu Tilukdhari Singh". S. 443 of the Code provided that "where the defendant to a suit is a minor, the Court, on being satisfied on the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor, to put in the defence of such minor, and generally to act on his behalf in the conduct of the case." No formal order appointing Moti Rani Koer as the guardian for the minors was drawn up by the Court, and there was no appearance in the suit itself by Moti Rani Koer on behalf of the minors. On the 29th October 1881, Mahammad Zaharul Haq obtained a mortgage decree and subsequently purchased the share now sued for in execution of his decree.

In 1897, the persons who were sued as minors in the mortgage action instituted a suit for a declaration that the mortgage decree and the sale held in pursuance of decree were null and void as against them and for recovery of possession of the share which had passed at the auction sale. The plaint stated that the mortgage in question was improperly executed by Tilakdhari without legal necessity or justification, and for immoral purposes, and that whatever money he received under it was spent for such purposes, none of it being applied for the benefit of the family; that, at the date of the mortgage Tilakdhari and his branch of the family formed part of a joint family of which his elder brother, Baiju Singh, was karta or managing member, the plaintiffs being children of seven years and under, that the suit on the mortgage was prosecuted against the present plaintiffs without the appointment or presence in the suit of any guardian on their behalf; that none of the processes in the suit or in the execution of the decree was served upon them, or upon any guardian in their behalf; or even upon their mother; and that all the proceedings in the suit, including the sale were fraudulent. It will be noticed that the plaint raised a defence to the mortgage-suit on the merits, and contained an attack on the regularity of the proceedings adopted by the Court in the mortgage suit. The learned Subordinate Judge held that the mortgage was executed for the full consideration of Rs. 8,000 and that the money was applied for family purposes and not immorally. He disbelieved the evidence of the plaintiffs as to the dissipated character of Tilakdhari and he found that Tilakdhari was not joint with his brothers at the date of the execution of the bonds. He accordingly decided the merits against the plaintiffs, and came to the conclusion that there was no defence to the mortgage-suit. On the question whether the minors were at all sued, he held that the suit was "subsantially directed against the minors and they cannot say that they were not parties to it." On the question whether Moti Rani Koer was a proper person to be the guardian of the minors, he said that the minors were residing with her and that there was evidence that "she preferred an appeal on their behalf." As this passage is open to misconstruction, it ought to be pointed out that the act of Moti Rani Koer in preferring an appeal on behalf of the minors to which the learned Subordinate Judge referred was an act in another proceeding altogether, and not in the mortgage-suit or in any proceedings arising out of the mortgage-suit. As the view has been taken in some of the cases to which I shall presently refer that, though there was no formal order appointing Moti Rani Koer as the guardian of the minors for the suit, she actually appeared in the suit and took various steps for the protection of the minors, I have thought it necessary to examine the original record of the case brought by the minors, to see if there is any justification for the view in the evidence that was adduced in that case. I find that Moti Rani Koer did not enter appearance in the mortgage-suit, and took no part in it either on her behalf or on behalf of the minors. There was no suggestion that she did enter appearance or in any way protected the interests of the minors; but, as the learned Subordinate Judge pointed out since there was no defence on the merits, "it cannot be said that her silence has prejudiced the plaintiffs." In considering the question whether she was fit and proper person to act as the guardian of the minors, the learned Subordinate Judge pointed out that there was evidence that she had preferred an appeal on behalf of the minors. On examining the record, I, find that that appeal was preferred in an execution matter in which Ghamundi Singh, Harshewak Singh and others were decree-holders, and not in the mortgage-suit which was a suit by Mahammad Zahurul Haq. Dealing next with the question whether the minors were properly represented in the mortgage-suit, the learned Subordinate Judge conceded that "no formal order appointing the guardian was drawn up," but he thought that "the Court must be deemed to have sanctioned the appointment as it had before it the names of the minors and of their mother as guardian" and he came to the conclusion that, as there was no defence open to the widow, "it cannot be said that her silence has prejudiced the plaintiff ". In the result, he dismissed the plaintiff''s suit. On appeal, the Calcutta High Court refused to consider the question whether there was any defence on the merits, for it came to the conclusion that, if the minors were not properly represented in the action, the decree was a nullity, and the minors could disregard it. Dealing with the question whether the minors were properly represented, the High Court said as follows:-"S. 443 of the CPC is imperative upon this point; the Court after satisfying itself of the fact of minority, is bound to appoint a proper person to act on behalf of the minor in the conduct of the case. From the proceedings in the mortgage-suit, it seems clear to us that the Subordinate Judge never directed his attention to the question of the minority of these defendants or to the appointment of a proper guardian on their behalf and there is nothing from which we can presume, as the lower Court has presumed, that the Court before which the mortgage-suit was pending, ever sanctioned, expressly or impliedly, the appointment of the minor''s mother as their guardian ad litem." The High Court accordingly allowed the appeal, and made a declaration to the effect that the share of the plaintiffs could not be properly held to be liable under the mortgage-decree, or to have passed by the sale. The defendants carried an appeal to the Judicial Committee and the Judicial Committee reversed the decision of the High Court, and restored that of the Subordinate Judge. The Judicial Committee agreed with the view of the High Court that the rules laid down in S. 443 should be strictly followed but it did not agree with the view that a defect in following those rules was necessarily fatal to the proceedings. And dealing with the argument that the minors were not properly represented, the Judicial Committee said as follows:-" It appears to their Lordships that they were effectively represented in that suit by their mother, and with the sanction of the Court...... There is nothing to suggest that their interests were not duly protected. The only defects that can be pointed out are that no formal order appointing the mother of the now plaintiffs to be their guardian ad litem is shown to have been drawn up. It has not been shown that the alleged irregularities caused any prejudice to the present plaintiffs; nor indeed could there be any since it has been found that the original debt was one for which the present plaintiffs were liable. Their Lordships are of opinion that the defects of procedure alleged in this case are at most irregularities which, under S. 578 of the Civil Procedure Code, would not have furnished ground for reversing the proceedings in the former suit, if they had been raised upon appeal in that suit." I regard the decision of the Judicial Committee as establishing that the failure to comply with the provisions of S. 443 of the old CPC is a defect of procedure which will not be fatal to the suit, unless it is shown that the defect or irregularity in the proceedings has affected the merits of the case. S. 578 of Act 14 of 1882 corresponds to S. 99 in the present Civil Procedure Code.

If, as the Judicial Committee has held, the failure to comply with S. 443 of Act 14 of 1882 corresponding with O. 32, R. 3(1) is not fatal to the suit, on what ground can it be urged that the failure to comply with the provisions of O. 32, R. 3(4) and O. 32 R. 4(3) will render the decree null and void, although it is shown that the failure to comply with those provisions has not affected the merits of the case? It is argued that these are new provisions, and that there are distinct prohibitions contained in these provisions. But there was just as much prohibition in S. 443 of Act 14 of 1882 as there is in O. 32, R. 3(4) and O. 32, R. 4(3) of the new Code. What reason is there for suggesting that, though the failure to comply with the provisions of O. 32 R. 3(1), S. 443 of the old Act does not affect the jurisdiction of the Court, the failure to comply with the provisions of O. 32, R. 3(4) and O. 32, R. 4(3) does affect its jurisdiction? All these different provisions stand on the same footing and are intended to secure a fair trial of the case, where a minor is a party to the suit. The argument, in my opinion, proceeds on a fundamental misconception that that which is, or ought to be, an exercise of jurisdiction is prerequisite to the existence of jurisdiction. As a distinguished American writer has said "But if a judgment is rendered by a Court having jurisdiction of the parties and subject, it is held, by the great preponderance of authorities, that it will not be void because the defendant was an infant and no guardian ad litem was appointed, although it will be irregular and liable to reversal, or voidable on a proper proceeding for that purpose. The theory is, that the appointment of a guardian is not a pre-requisite to the jurisdiction of the Court"-(See Black on Judgment, Vol. I; S. 193). If it were not for the opinion expressed by a learned and distinguished Judge, I should have said without hesitation that the decision of the Judicial Committee in the case to which I have referred is decisive of this case.

In Bal Kishan Lal Vs. Topeswar Singh and Others, , Mookherji, J. (sitting with Carnduff, J.) took the view that a decree passed in a suit to enforce a mortgage executed by the father was a nullity so far as the minor son concerned if the father were appointed guardian ad litem without his consent, and he did not appear in the suit and protect the interest of the minor. The learned Judge distinguished the case of 7 CWN 774 (Privy Council) , and thought that the case of 9 CWN 201 (Privy Council) was applicable to the facts of the case. The ground of distinction, according to the learned Judge, is this, that whereas in Walian''s case the minor was properly represented, on the face of the record, by a competent guardian, in the case before him, the minor was not so represented. With all respect, I am unable to take this view. It is quite true that, in the case before His Lordship, the father did not intimate his acceptance of the office of the guardian ad litem; but neither did the mother in Walian''s case. The record, in each case, showed, on the face of it, that a guardian ad litem had been appointed for the minors; but in neither of the cases did the guardian ad litem actually appear and contest the suit on behalf of the minor. The only distinction which can be suggested is that in Walian''s case it was the mother who was appointed the guardian ad litem, whereas in the case before His Lordships the father who had executed the mortgage bond was so appointed. Mr. Justice Mookherji thought that, there being a conflict of interest between the father and the son, it was not competent to the Court to appoint the father as the guardian for the minor son. With great respect to the learned Judge, I am quite unable to take this view. A person is said to have an interest adverse to that of another when one interest is capable of being enforced against the other. In a partition action, the interest of the father is clearly adverse to that of the son. But in a suit to enforce a mortgage bond executed by the father, it is difficult to see how the interest of the father can be regarded as adverse to that of the son. It is quite true that, in such a suit, it is open to the son to question the validity of the mortgage bond; but such a defence is clearly in the interest of the father, for if the defence succeeds, the bond as a whole must fail. The case of Kbiarajmal is, in my opinion, a different case. The facts of that case were these: By certain transactions, certain properties became vested in the following persons in definite shares, Nabibaksh and his brother Alibaksh, Neurez, Bugro, Sanwan, and Khan Muhammad. In 1874, two mortgages were executed by them, one in favour of Tekchand and his partner Kodumal the predecessors in title of the defendants, the other in favour of Tekchand, Kodumal and Waliram. Between 1874 and 1878, the following changes took place in the family of the mortgagors; Naurez died leaving a widow and four children including Amirbaksh; Khan Muhammad died leaving seven children including Kadurbaksh; and Sanwan died leaving a widow and four children including Sumar. On the 4tb June 1878, the following tran-sanctions took place first, Nabibaksh on behalf of himself and Alibaksh executed a mortgage of a moiety of the property in favour of Kodumal and Tekchand by which the debts created by the previous mortgages of 1874 were satisfied so far as Nabibaksh and Alibaksh were concerned; secondly, Kadurbaksh, one of the children of Khan Muhammad purported to convey the share of Khan Muhammad in the property which he described as his share to Bugro in consideration of a sum of money which was taken to be "his share" of the mortgage debts created by the two mortgages of 1874 which Bugro agreed to pay; thirdly, Bugro, Sumar, one of the children of Sanwan and Amirbaksh, one of the children of Naurez, purported to mortgage the other moiety of the property to Kodumal and Tekchand, by which the debts created by the mortgages of 1874 were satisfied so far as Naurez, Khan Muhamad, Sanwan and Bugro were concerned. It will be noticed, that, by the transaction of 1878, the entire sixteen annas of the property passed into the possession of Kodumal and Tekchand as morgtagees. In 1878, some time before the execution of the mortgages, Kodumal and Tekchand commenced a suit (suit 160 of 1878) against "Naurez deceased by his legal representative, Amirbaksh, by his guardian, his uncle Alahnawaz" and certain other persons to recover a sum of money on settled account. It will be noticed that the suit was neither in form nor in substance a suit against Amirbaksh. The suit was against the estate of Naurez; and Amirbaksh, as one of the five heirs left by Naurez, could not be said to represent the estate of Naurez; nor could the share of Amirbaksh be proceeded against in the suit, for, as I have said, the suit was not against Amirbaksh personally. That suit was compromised for the sum of Rs. 519, and, default having been made, the land standing in Naurez''s name was sold to Ubhuromal who transferred it to Darianomal. One of the questions which the Judicial Committee had to consider was whether the equity of redemption which belonged to the estate of Naurez was effectively sold in a suit to which the estate of Naurez was not a party. It may be mentioned that Darianomai was the gomasta of the firm of Kodumal and Tekchand and was their benamdar in the purchase. In 1879 another suit was commenced, this time by Waliram against Nabibaksh, Bugro, Sumar, Kadurbaksh and Amirbaksh described as "a minor aged about 14 years, legal representative of Naurez, deceased by his guardian, his uncle Alahnawaz" to recover a sum of money in respect of his share of the sum due under the mortgage, to himself and his partners, of 1874. It will be remembered that the mortgage in question had been executed by Nabibaksh (on behalf of himself and his brother Alibaksh), Naurez, Bugro, Sanwan and Khan Muhammad. The suit as constituted could not be regarded as a suit against Sanwan, Khan Mahammad and Naurez, since at the date of the institution of the suit, they were already dead, and the legal representatives in whom their respective estates had vested were not cited as defendants in the action. So far as Alibaksh is concerned, he was properly represented in the action by Nabibaksh who had executed the mortgage on behalf of Alibaksh as well as of himself. And though Alibaksh was living, and was not cited as a defendant, no objection could be taken to the constitution of the suit so far as he was concerned.

The proceedings in the suit were somewhat extraordinary. The names of Sumar and Kadurbaksh were struck off from the record of the suit, and, on an application by Waliram, Nabibaksh, Bugro and Alahnawaz the matters in dispute were referred to the arbitration of Kodumal, the partner of Waliram. Shortly afterwards Nabibaksh died, and his heirs were properly brought on the record; but the death of Nabibaksh had a material effect on the constitution of the suit in regard to Alibaksh. Alibaksh, as I have said, was not a party to the suit; but Nabibaksh had executed the mortgage on his behalf, and, as the Judicial Committee pointed out, it might be possibly held that Nabibaksh''s authority extended to representing Alibaksh in Waliram''s suit. But by no possibility could it be considered that he was represented by the heirs of the deceased brother. The arbitrator, in due course, made his award by which he directed that Waliram should recover a sum of money from Bugro and from the estates of Nabibaksh, Sanwan, Khan Muhammad and Naurez respectively in certain instalments, and the Judge passed a decree in terms of the award. It will be noticed that there was no decree against Alibaksh, and the decree as against the estates of Sanwan, Khan Muhammad, and Naurez was open to the objection that those estates were never sued. Execution followed the decree, and the properties, the subject of the mortgage (except a particular item which was taken to belong to Naurez and which was sold in execution of Tekchand and Kodumal''s decree herein before stated) were sold to Darianomal, the benamdar of the firm of which Tekchand and Kodumal were the partners. Thus the equity of redemption in the mortgaged properties apparently passed to the mortgagees as a result of the two execution sales.

The suit in which the question of the validity of the execution sales was raised was instituted by Alibaksh, by the heirs of Nabibaksh, by the heirs of Naurez, by the heirs of Sanwan, by the heirs of Khan Muhammad, and by the heirs of Bugro, and the suit was one for the redemption of the mortgages. Bugro, it appears, had died prior to the institution of the redemption action. The question which the Judicial Committee had to consider was whether the equity of redemption not only purported to be, but was in fact, sold under the money decrees. Their Lordships conceded that the sales could not be treated as void on the ground of any mere irregularities of procedure in obtaining the decrees or in the execution of them; but they were of opinion that the Court had no jurisdiction to sell the property of persons who were not parties to the suit or properly represented in the record. There is no doubt whatever in my mind that what the Judicial Committee did consider was whether the record itself showed that the suit had been brought against the persons against whom the decrees were obtained not whether, apart from the record, the suit could be regarded as a suit against those persons, having regard to the rules of procedure laid down in the Code or recognized by the Courts.

The Judicial Committee considered the case of each of the mortgagors separately, and found that the estates both of Nabibaksh and Bugro were sufficiently represented for the purpose of the suit and that their shares of the equity of redemption in the property sold in execution of the decree obtained by Waliram were bound by the sale and were therefore irredeemable. In regard to Alibaksh, the Judicial Committee pointed out that he was not a party to the suit and that there was no decree against him, and that consequently the Court had no jurisdiction to sell his share. In regard to Sanwan and Khan Muhammad, the Judicial Committee had no difficulty in holding that their shares did not pass by the sale. In the first place their estates were not represented in the action; in the second place, Sumar (one of the heirs of Sanwan) and Kadurbaksh, (one of the heirs of Khan Muhammad) who were sued in their personal capacities, were dismissed from the suit, and they were in no sense parties to the suit when the decree was passed against them. There is no difficulty in understanding the decision so far; but from what their Lordships said in regard to Amirbaksh, one of the heirs of Naurez, it has been assumed that the Judicial Committee has decided that a decree obtained against a minor without a proper appointment of a guardian is a nullity so far as the minor is concerned. In my opinion, no such conclusion can be based on what was actually decided in the case, though there are observations in the judgment of Lord Davey which may support the contention. In order to understand the point, it is necessary to repeat that Amirbaksh was a party to both the suits, not in his personal capacity, but as the legal representative of Naurez. Now Naurez had left a widow and four children all of whom were his heirs under the Muhammadan Law, and by no possibility could it be considered that the estate of Naurez was at all represented in the actions. This, in my opinion, was the basis of the decision of the Judicial Committee, though it was pointed out by Lord Davey that Alahnawaz was not the guardian of Amirbaksh, and had never been appointed as such by the Court. It was for this reason that the Judicial Committee discussed the question whether the estate of a deceased debtor could be represented by one member of the family. In dealing with this question, the Judicial Committee said as follows:- "The Indian Courts have properly exercised a wide discretion in allowing the estate of the deceased debtor to be represented by one member of the family, and in refusing to disturb judicial sales on the mere ground that some members of the family, who were minors, were not made parties to the proceedings; if it appears that there was a debt justly due from the deceased no prejudice is shown to the absent minors. But these are usually cases where the person named as defendant is de facto manager of a Hindu family property, or has the assets out of which the decree is to be satisfied under his control." After distinguishing the case of Malkarjun v. Narhari (1901) 25 Bom. 337: 37 I.A. 216: 2 Bom. L.R. 927: 10 M.L.J. 388: 5 C.W.N. 10 (P.C.) on the ground that there was a decision in that case, an erroneous decision, it is true, but still a decision, in the effect-that execution could proceed although the estate of the deceased debtor was not represented in the execution proceedings-their Lordships stated their conclusion in these words: "Their Lordships think that the estate of Naurez was not represented in law or in fact in either of the suits, and the sale of his property was therefore without jurisdiction, and null and void. Nor can they hold that the share of Amirbaksh himself in his father''s estate was bound". I think it follows from this passage that what the Judicial Committee actually decided was that the sale of property belonging to person or to an estate in execution of a decree in a suit in which that person or that estate is not represented is without jurisdiction and null and void. As the last sentence in the passage cited is open to some misconception, it ought to be pointed out that Amirbaksh was not the debtor and that he could not in law, and was in fact, sued in his personal capacity; and that qua his own share in the property inherited by him, he was in the same position as if he was not a party to the suit.

It was strongly pressed before us that Lord Davey was undoubtedly impressed by the fact that Alahnawaz was not the guardian of Amirbaksh and was not appointed as such by the Court. That undoubtedly is so; but so far as this point is concerned, the case cannot be distinguished from the case of 7 CWN 774 (Privy Council) which was cited before their Lordships, but which was not referred to in the judgment of Lord Davey. In Walian''s case as in Khiarajmal''s case a person appeared in the record as the guardian ad litem of the minor; but neither in Walian''s case nor in Khiarajmal''s case was that person appointed as such by the Court. The only difference between the two cases is this that whereas in Walian''s case, the guardian never appeared in the proceedings to protect the interest of the minor, in Khiarajmal''s case, he did appear, in one of the suits, to refer the matter in dispute to the arbitration of a certain person, in the other suit, to compromise the claim for a certain sum of money. In Walian''s case, the defect was regarded, not as affecting the jurisdiction of the Court, but as a defect or irregularity in the proceedings in the suit which would not affect the decree unless it afected the merits of the case. I cannot read the decision in Khiarajmal''s case as laying down the contrary proposition, unless the Judicial Committee has said so in express words. In my opinion, the actual decision in Khiarajmal''s case does not support the conclusion at which Mr. Justice Mukharji arrived in the case cited.

The only other case which I propose to discuss is the case of Annada Prasad alias Annoda Chandra alias Bhola Ghosh Vs. Upendra Nath Dey Sircar and Maharaj adhiraj Sir Bejoy Chand Mahatap Bahadur and Others, . In that case Mr. Justice Mukharji laid down that where a person has been appointed guardian without his consent, in contravention of the express direction of O. 32, R. 4(3), the infant is not represented, and a decree made in a suit so constituted has no binding effect upon him; and the learned Judge referred to three decisions of the Judicial Committee as supporting his view. The cases referred to by the learned judge are 9 CWN 201 (Privy Council) , 13 CWN 1182 (Privy Council) and 17 CWN 1165 (Privy Council) . I have already dealt with the first of these cases, and it is unnecessary to deal with it again. The second mentioned case is an authority for the proposition that a married woman is disqualified under S. 457 of the Code from being appointed guardian for the suit and that where a married woman is appointed guardian for the suit, the position is just the same as if the minor were not a party to the suit. It is not an authority for the proposition that "when a person has been appointed guardian without his consent the infant is not represented, and a decree made in a suit so constituted has no binding effect upon him". It may be said that the prohibition contained in S. 457 of the old Code stands on the same footing as a prohibition contained in O. 32, R. 3(4) or a prohibition contained in O. 32, R. 4(3). But, as has been pointed out, it is often a matter of some nicety to draw a distinction between the existence of jurisdiction and the exercise of jurisdiction. It may be said that the Court has no jurisdiction to pass any order against a minor unless the minor is represented in the record by a guardian competent to act as such; and that where the record itself shows that the minor is not properly represented, the effect is the same as if the minor were not a party to the suit. The record, in my opinion, is, in each case, decisive of the question. There is clearly a distinction between a case where a person disqualified from acting as guardian is so appointed, and a case where a person competent to act as guardian is so appointed, though without the express consent of the guardian. In the one case the record on the face of it shows that the representation is bad; in the other case, the record, on the face of it, shows that the representation is complete. In my opinion, the Judicial Committee cannot be taken to have expressed any disapproval of Walian''s case which was cited before their Lordships, but which was not referred to in the judgment.

The last mentioned case is clearly distinguishable. The facts were these: One Rajah Balbhaddar Singh died leaving two minor sons, Pratab Singh and Abharan Singh who were the plaintiffs in the action. The defendant Bhabuti Singh assumed to act as the guardian of the minors and as the manager of their property. Certain persons, who may be conveniently referred to as the vendors sold certain properties to certain other persons who may be referred to as the vendees. Both the plaintiffs and Bhabuti Singh bad rights of pre-emption in the properties sold, plaintiffs'' rights being superior to that of Bhabuti in one of the properties sold, and in the other, their rights were equal to that of Bhabuti. It is obvious that there was a conflict of interests between the plaintiffs and their guardian Bhabuti. On the 26th June 1899, Bhabuti on his own behalf brought a suit to pre-empt, and made the vendors and the vendees defendants to the suit. On the 5th August 1899, Bhabuti Singh caused the now plaintiffs to be added as defendants to his suit. According to the amended plaint, the now plaintiffs, under the guardianship of Hari Pershad, were added as defendants under an order dated the 5th August, 1899. The Judicial Committee found, first, that Hari Pershad was a creature of Bhabuti and acted throughout in the interest of Bhabuti and secondly, that "the amendment of the plaint adding Pertab Singh and Abharan as defendants was not attested by the signature of the Judge." It will be remembered that in Walian''s case, as the Judicial Committee took pains to point out, "the Court admitted the plaint in which the mother was described as guardian," and "in its decree it so described her." Now the distinction between this case and Walian''s case is this, that whereas in this case, no one appeared in the record itself as the guardian of the minor, for, the amendment of the plaint was not attested by the signature of the Judge, in Walian''s case the mother of the minor appeared in the record with the sanction of the Court as the guardian of the minor. Now it is impossible to have recourse to the doctrine that the Court by implication sanctioned the appointment, if the record itself is silent about the appointment; and, as I have shown their Lordships took pains to point out that the amendment of the plaint adding Pertab Singh and Abharan as defendants was not attested by the signature of the Judge. The position then is the same as if they were not parties to the suit, and the consent decree which was ultimately passed was a nullity so far as they were concerned.

The other matter which the Judicial Committee had to consider was the compromise of another suit which Bhabuti caused Hari Singh to file on behalf of the now plaintiffs. That was also a suit to pre-empt the same properties against the vendors and the vendees, and Bhabuti caused himself to be added as a defendant. After the compromise of his own suit, he caused Hari Pershad to present an application on behalf of the minors asking for leave to withdraw the suit on the ground that the matter had already been settled between the parties. The Judicial Committee pointed out that the Court was not informed that in the suit in which the compromise was entered......the suit of Bhabuti-the minors were not represented in law, nor was it informed that the compromise was entered into without the leave of the Court first having been obtained. According to the decision of the Judicial Committee in the case of Manohar Lal v. Jadu Nath Singh (1906) 28 All. 585: 39 I.A. 128: 8 Bom. L.R. 489: 4 C.L.J. 8: 10 C.W.N. 898: 9 O.C. 219: 1 M.L.T. 210: 16 M.L.J. 291: 3 A.L.J. 710 (P.C.) the compromise was entirely void as against the minors, and the Judicial Committee came to the conclusion that on that ground the minors were entitled to have the decree dismissing their suit set aside. The whole decision of the Judicial Committee shows that there was fraud from start to finish, and that the irregularities of the procedure affected the merits of the case. It is material to point out that the Judicial Committee made a distinction between the compromise decree in Bhabuti''s suit, and the order of dismissal of the plaintiffs'' suit. The compromise decree they regarded as void on the ground that the minors were not parties to the suit and were not represented in the record by a guardian. The order of dismissal of the plaintiffs'' suit they regarded as voidable on the ground that the Court was not informed of various matters which it was entitled to know when it was asked to sanction the withdrawal of the suit brought by the minors. I cannot regard the decision of the Judicial Committee as a decision to the effect that "when a person has been appointed guardian without his consent, the infant is not represented, and a decree made in a suit so constituted has no binding effect on him."

While the three cases relied on by the learned and distinguished Judge do not support the conclusion at which he arrived, the decision in Walian''s case, in my opinion, is conclusive of the matter. With reference to Walian''s case, the learned Judge said as follows:-"As appears from the judgment of the Judicial Committee in that case, the mother who had been proposed for appointment as guardian of her minor son had entered appearance and acted throughout the trial of the suit. No trace, however, could be found on the record of a formal order for her appointment as a guardian ad-litem. The Judicial Committee held in substance that the absence of a formal order of appointment as a guardian is not fatal to the validity of the proceedings, where the proposed guardian has in fact appeared and acted on behalf of the minor." With all respect, this is a wholly inaccurate statement of what was decided in Walian''s case. There is no suggestion anywhere in the judgment of the Judicial Committee that the proposed guardian had entered appearance or had taken any part in the trial on behalf of the minor; nor indeed could there be such a suggestion; for in truth, as the judgment of the Subordinate Judge shows and as an examination of the record of that suit establishes beyond doubt or controversy, the guardian did not enter appearance, nor did she take any part in the trial at any stage. In fact she was wholly "silent", as the Subordinate Judge pointed out, and the only question which the trial Court and the Judicial Committee considered was whether her silence had prejudiced the minors. Their Lordships did indeed say that the minors "were effectively represented in that suit by their mother and with the sanction of the Court," but it is to the state of the record that those observations were directed. That this is so will appear clearly from an examination of the earlier part of the judgment where their Lordships, after agreeing with the Subordinate Judge that no order appointing the mother as the guardian ad litem was ever drawn up, proceeded to say as follows "an examination, however, of such proceedings in that suit as are forthcoming, shows that the Court admitted the plaint in which the mother was described as guardian; that in its decree it so described her; and that similar language was used in the execution proceedings." There can be no doubt whatever that all that the Judicial Committee considered was whether she was described as the guardian of the minors in the proceedings of the suit and of the execution. It is one thing to say that the mother appeared in the proceedings of the suit as the guardian of the minors; it is another thing to say that she entered appearance in the suit and acted throughout the trial of the suit as the guardian of the minors.

I have examined the whole subject with some care, because, in my experience, the subordinate Courts, through carelessness or negligence, are constantly disregarding the provisions of O. 32, R. 3(4) and O. 32, R. 4(3) to the serious embarrassment of the course of justice, and questions are frequently coming before us whether, in such circumstances, the decree should be regarded as null and void. I cannot overlook what the Judicial Committee pointed out in Walian''s case, that it is one thing to impress upon all the Courts in India the importance of following strictly the rules laid down in the sections referred to, and that it is quite another thing to say that a defect in following those rules is necessarily fatal to the proceedings. I have come to the conclusion that the question of jurisdiction stands apart from the question of a defect in following these rules, and that, on a question of jurisdiction, the actual record or the proceedings of the suit should in each case be decisive. In other words, where, on the face of the record, a person qualified to act as the guardian, appears as a guardian of the minor for the suit, the Court has no power in another suit brought for the purpose of impeaching the validity of the decree, to examine the evidence in order to see whether notices under O. 32, R. 3(4) were, in fact, served, or whether the person nominated as guardian did consent to act as guardian or whether the Court did expressly appoint such person as the guardian for the suit, unless it is shown that the defect in following the rules has affected the merits of the case. But where the record, on the face of it, shows, that the minor was not represented by a guardian for the suit, or was represented by a guardian disqualified, under the express provision of the statute, from acting as guardian, the position is the same as if the minor were not a party to the suit, and the judgment rendered by the Court is without jurisdiction and null and void. I think the decisions of the Judicial Committee support the conclusions at which I have arrived.

In the present case, as I have shown, the present plaintiff had no defence to the suit in which he was cited as a defendant. He was represented throughout in the proceedings of the suit by a guardian competent to act as such. That being so, it is impossible to hold that the decree passed against him in the mortgage suit and the sale held in pursuance of that decree are null and void.

I would dismiss this appeal with costs. The cross objection is allowed.

Adami, J.

I agree.