1. This is an appeal in a suit to set aside amortgage-decree and the execution sale consequent thereupon, on the ground thatthe decree was made under Circumstances which render it inoperative as againstthe plaintiffs appellants. There is no dispute as to the facts which have givenrise to this litigation. The defendants instituted a suit against the plaintiffsto enforce a mortgage-bond alleged to have been executed by their father. Whenthe suit was instituted on the 25th May 1905, the present plaintiffs, thendefendants, were infants. The Court directed the plaint to be registered. Asthe defendants were infants and as the plaintiffs had proposed their mother forappointment as guardian ad litem, the Court recorded an order to the followingeffect: "Issue notice to the minors and the guardian, fixing the 17th Julyfor appointment of the guardian." On the 17th July, the mother did notenter appearance or signify her willingness to accept the office of guardian adlitem of her infant sons. The Court thereupon proceeded to record the followingorder: "The defendants are absent, Protap Chunder Mozumdar witness for theplaintiffs is examined and Exhibit I is used as evidence on behalf of theplaintiffs. According to the reasons given in the judgment, the suit is decreedwith costs." To use the words of Mr. Justice Trevelyan in Dakeshur PershadNarain Singh v. Rewat Mehton 24 C. 25 pc : 12 Ind. Dec. (N.S) 681. it isdifficult to conceive of a case where the formalities of law have been moreneglected than in the present instance. When the proposed guardian did notenter appearance and accept the office, the duty of the Court was to appointone of its officers to act as guardian ad litem for the infants. The Court notonly 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 ofthe decree so made, the properties of the infants were subsequently brought tosale and were purchased by the decree-holders themselves. The plaintiffs nowseek to have the decree and the execution sale cancelled on declaration thatthe decree was inoperative as against them. In our opinion, there is no answerto the Suit.

2. The Subordinate Judge has placed reliance upon thedecision of the Judicial Committee in the case of Walian v. Banke BehariPershad Singh 30 C. 1021 pc: 30 I. A. 182 : 7 C. W. N. 774 : 5 Bom L. R. 822 :8 Sar. P. C. J. 512 (P. C.) which is clearly distinguishable. There theJudicial Committee held that the proceedings in the earlier litigation showed, onthe face of them, that the infants were represented by a properly appointedguardian, although no recorded order of appointment could be traced. In thesecircumstances, and in the absence of the records of the earlier suit (which hadapparently been destroyed), the Judicial Committee ruled that the mere absenceof an order to the effect that the mother was appointed, guardian ad litem didnot invalidate the proceedings. In the case before us, on the other hand, thefacts are well established.

3. The mother was never appointed guardian ad litem of theminor; indeed, she never entered appearance; and the Court proceeded to decidethe suit on a date which had been fixed for the appointment of a guardian andnot for the final disposal of the suit. In our opinion, this decree must betreated as a decree made against persons who were not represented in the suitand who consequently occupy the same position as if they were not parties tothe litigation. This view is supported by the decision of this Court in NarsingNarain v. Jahi Mistry 13 Ind. Cas. 414 [LQ/CalHC/1911/228] : 15 C. L. J. 3. and is also inconformity 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 : 6A. 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 aguardian duly appointed and competent to represent them for the purposes of thelitigation, the decree made against them must be deemed inoperative in law.

4. The result is that this appeal is allowed, the decree ofthe Subordinate Judge set aside and the suit decreed with costs in all theCourts. It is declared that the decree, made in the mortgage suit is notoperative as against the plaintiffs-appellants and must stand cancelled. Theconsequence will be that the mortgage suit will stand revived and the mortgagewill be entitled to proceed therewith in accordance with law. The saleconsequent on the decree will also stand cancelled and the plaintiffs will beforthwith restored to possession of the property in suit, in execution of thedecree of this Court.

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Baneswar Pramanik and Ors. vs. Tarapada Bhattacharjee andOrs. (03.05.1917 - CALHC)