Reuben, J.This petition by defendants 1 to 4 has been filed in the following circumstances.

2. The petition arises out of a suit filed by Nabab Khan (opposite party) for the redemption of certain property. The petitioners are prior mortgagees in respect of this property under a simple mortgage bond executed on 22nd September 1922. They obtained a decree for sale on the foot of this bond and purchased the property in execution of the decree. Nabab Khan, who is a puisne mortgagee in respect of the suit property under a simple mortgage bond dated 26th May 1925 not having been impleaded in the suit brought by defendants 1 to 4, has brought the present suit (No. 253 of 1945) to redeem the property. There are four defendants in the case, defendants 1 and 2 being majors and defendants 3 and 4 minors. A pleader guardian was appointed for the minors but died after filing the written statement. In ignorance of this fact, the suit was allowed to proceed without appointing a fresh pleader guardian and a preliminary decree was granted by the Munsif on 27th September 1946. An appeal has been filed before the District Judge against this preliminary decree, being Appeal No. 346 of 1946, and is said to be still pending. On 18th November 1946 Nabab Khan applied to the Munsif for a final decree. Opposing this, the defendants brought to the notice of the Court for the first time the fact of the non-representation of the minors. It was contended on behalf of Nabab Khan that the minors had attained majority. This contention was rejected by the Munsif, and on 14th December 1946, the Munsif granted a final decree in the terms of the prelixninary decree against defendants 1 and 2, and made a note that defendants 3 and 4 would not be bound by either of these decrees. On 21st December 1946, Nabab Khan applied to the Munsif u/s 151, Civil P.C., asking that the suit should be restored to the stage at which the guardian ad litem died, on the ground that both the decrees are now void. This petition has been allowed by the Munsif. Hence the present petition.

3. It appears to me that the order of the Munsif falls into two parts first part affecting the preliminary decree and the latter the final decree. Mr. De for the petitioners contests the jurisdiction of the Munsif so far as it relates to the preliminary decree, a contention which, in my opinion, is fully justified.

[4] The main ground on which I would base my acceptance of Mr. Des contention is that, OH account of the appeal which is pending in the Court of the District Judge, the Munsif had no jurisdiction to entertain the petition so far as it related to the preliminary decree. Mr. Sen for the opposite party has referred me to several decisions, but I think they are all distinguishable. Kodai Mistr v. Reyazul Haq AIR 1981 All. 766, was a case in which the petitioners sought to amend a clerical error in the plaint and in the decree during the pendency of an appeal. The amendment sought was one coming within the scope of Section 152, Civil P.C., as was also the case in Barhamdeo Singh v. Harmanoge Singh AIR 1914 Cal. 220 , where Carnduff J. pointed out that an amendment under this section can be applied for "at any time." Batuk Prasad Singh Vs. Ambica Prasad Singh, was a case in which the appeal had been dismissed under Order 41, Rule 11. As explained by Fazl Ali J. (as he then was) in that case, where an appeal is dismissed under Order 41, Rule 11, the decree appealed against continues to be the decree of the Court below. The petition for amendment, therefore, was rightly addressed to that Court and was disposed of at a time when there was no appeal pending against the decree. The case of T. V. Raja Ram Rao v. Arumugam A.I.R.1916 Mad. 908, seems to be of a. similar nature. There a petition for an amendment of the decree schedule was filed before the Court of first appeal during the pendency of the first appeal. Through an oversight, it was not disposed of when the appeal was decided. It was moved for the purpose after the disposal of the first appeal and before the filing of the second appeal. At the time of the disposal of the petition, the second appeal had been rejected, that is to say, it had been dismissed under Order 41, Rule 11. The Court of first appeal, therefore, clearly had the jurisdiction to grant the amendment asked for. It will be noticed that this also was a case where there was no appeal pending at the time of the granting of the amendment. The only cases where an appeal was pending are those of Raghu Lal and Others Vs. Babu Arjun Singh and Others, and Batuk Prasad Singh AIR 1932 Pat. 238 both cases in which a minor defect in the nature of a clerical error was sought to be removed. Here, however, the question before the Court was that of validity of the decree itself. As a result of the decision of the Munsif, this decree has been entirely set aside, taking away the very basis of the appeal which is pending in a superior Court. The question as to the effect of the failure to appoint a fresh guardian ad litem for the minors is not free from difficulty. Several decisions on either side were cited before me. Of them, I need only mention a few: Girwar Narain Mahton v. Makbulunnissa AIR 1916 pat. 310 ; Ramcharitar Sao and Another Vs. Bawan Prasad Singh and Others, Ramji Dasv.Mahamaya Prasad P.L.T 86 Ganga Prasad Singh Vs. Mt. Ganeshi Kuer and Others, ; Narain Panday v. Suraj Bhan AIR 1937 Pat. 414 ; Ram Sanehi Lal and Another Vs. Janki Prasad and Others . The question was one which could properly be raised for consideration before the District Judge at the hearing of the appeal, It is difficult to hold that, in the circumstances, the Munsif has jurisdiction to consider and decide the point and, by his decision, take the appeal out of the Court of the District Judge.

5. There is another reason for which I would agree with Mr. De namely that relief u/s 151, Civil P.C., should not be granted where there is another remedy possible. As I have mentioned, the point of the validity of the decree could have been raised before the District Judge in the pending appeal and the District Judge has the authority to grant the remedy which has been given by the Munsif, supposing that be agrees with the view taken by the Munsif. A further objection to the jurisdiction of the Munsif so far as the preliminary decree is concerned may be suggested, namely, that the application would more properly fall under the provisiona of Order 47.

6. While I feel that the decision of the Munsif must be set aside so far as it relates to the preliminary decree, I wish to make it clear that I am not suggesting that his order restoring the suit to the stage at which the pleader guardian died is not correct That is a matter which must be considered by the Court which disposes of the pending appeal. I would also make it clear that, in the event of that appeal failing owing to some default on the part of the defendants appellants, it will be open to Nabab Khan to take Bttps in the appropriate Court for obtaining the relief which was given to him by the Muusiis order.

7. As regards the final decree, I have no doubt that the order of the Munsif is right and must be supported. From the facts, it is evident that the preliminary decree in the form in which it has been granted by the Munsif cannot be supported by the appellate Court. It is, there fore, futile at this stage to grant a final decree based upon it.

8. On the above grounds, I would allow the petition in part. The order will remain so far as it relates to the setting aside of the final decree. The order for setting aside the preliminary decree and restoring the suit is set aside. In the circumstances of the case the parties will bear their own costs. Let a copy of this order be sent to the appellate Court.