Agarwala, C.J.This is a Letters Patent Appeal by the plaintiffs against a decision of Ray J., and arises out of a suit for recovery of part of a holding.

2. Khosali Mandal and others were the recorded tenants of a holding of 28.4 acres. In 1906, the plaintiffs purchased 10 acres of this holding from Khosali, and later sold a part of it to Bhusi Mandal and another part to Gokul Ram Marwari, retaining the balance for themselves. The plaintiffs purchase was not recognised by the landlords, but their possession was noted in the remarks column of the record of rights.

3. In 1933, the landlords instituted a suit for rent against the recorded tenants and, in execution of the decree which they obtained in that suit, the entire holding was put up for sale and sold. At this sale the landlords were the purchasers. In the suit Khosalis nephews, who were minors and were co-tenants with him in the holding, were represented by a guardian ad litem appointed by the Court. Notices of the execution proceedings, however, were not served on this guardian. The minors were represented by their uncle Khosali. The sale was held on 10-8-1934, and confirmed on 10-9-1934. On 2-8-1935, Khosali, on his own behalf and on behalf of his minor nephews, made an application under Order 21, Rule 90 to have the sale set aside. This was dismissed. The landlords, who had purchased the holding in execution of the rent-decree, obtained delivery of possession on 24-1-1935, and settled it with the defendants on 8-7-1985. The plaintiffs alleged that they were dispossessed by the defendants in 1942.

4. The first Court dismissed the suit, but this decision was reversed in appeal. Thereupon, defendants preferred an appeal to this Court, with the result that the decision of the first Court was restored. It was contended in the* second appeal, as it had been in the lower appellate Court, that the executing Court had no jurisdiction to sell the holding because notice under Order 21, Rule 22 was not served on the guardian ad litem, who had been appointed to represent the minors in the suit. This contention was overruled by Ray J. who, on a review of the conflicting decisions, on the subject, held that the minors had been effectively represented in the execution proceedings by their natural guardian Khosali and that they had not been prejudiced. The question whether the minors were properly represented in the execution proceedings was not raised in the pleadings, or in the issues that were framed at the trial. The appellants, however, rely on a statement in the judgment of the lower appellate Court that it was the admitted case of both parties that no order was obtained from the Court for the removal of the guardian ad litem who had been appointed to represent the minors in the suit and for the appointment of their uncle Khosali to represent them as their guardian in the execution proceedings, and reliance was placed on the unreported decision of a Division Bench of this Court in Shiva Sahai Ram v. Sundar Mandal Second Appeal No. 473 of 1943.

5. The facts of that case were very similar to those of the present, and it was held that the sale was void so far as it related to the shares of the minors. There was, however, one important difference between the facts of that case and the facts of the present case, and that is that the natural guardian of the minors who represented them in the execution proceedings allowed an application under Order 21, Rule 90 to set aside the sale to be dismissed for default. In that case it was the minors who were challenging the sale, so that the dismissal of their application under Order 21, Rule 90 for default of appearance of their guardian must be regarded as prejudicial to their interests. In the present case it is not the minors who are challenging the sale, and it is clear that their uncle who represented them in the execution proceedings was not negligent of their interest, for he took such steps as were available to him to challenge the sale by an application under Order 21, Rule 90 which was pressed to a decision on the merits. The use of the word "void" in reference to the sale in the unreported case, to which reference has been made, was not1 intended, I apprehend, to indicate that, in the view of the learned Judges who decided that case, the sale was a complete nullity, for that would have been contrary to the view which has prevailed in this Court and to a decision to which Pazl Aii C.J. himself was a party, Madhusudan Ray Vs. Jogendra Kar and Another, , which is not referred to in the judgment of the unreported case. In Ram Sundar and Another Vs. Amrit Pajiyar and Another, this Cqurt, following the decision of the Privy Council in Walian v. Banke Behari Pershad Singh (03) 30 I.A. 182 , held that where a minor is properly a party to a suit, that is to say, if he is represented on the record by a guardian not disqualified from acting, the jurisdiction of the Court to try and determine the case 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. This decision was followed in Madhusudan Ray Vs. Jogendra Kar and Another, where, however, it was pointed out that the position would be different where the minor has been prejudiced, and that, in such a case, a decree obtained against him may be set aside. That an irregularity with regard to the appointment of a guardian of a minor is a matter of prejudice and not of jurisdiction was also held in Paran Munda and Another Vs. Santosh Mahto and Others, which was, decided by myself. The same result follows from the decision of the Division Bench in Badri Mahto Vs. Lochan Sah, , where the final decree prepared in a mortgage suit showed the minor judgment-debtor as being represented by his mother as his natural guardian, whereas in the preliminary decree he was shown to be represented by a guardian ad litem appointed by the Court. It was contended in that case that as there was nothing to; show, that the guardian ad litem appointed by the Court had been discharged, the minors mother had no right to represent him as guardian, and that, consequently, he was not properly represented when the final decree was passed. It was. held that it was for the minor to show that he had not been properly represented and not for the decree-holder to show that the guardian ad litem appointed by the Court had been discharged and his natural guardian was appointed to represent him, and that, in view of the rule omnia prasumuntur rite acts, it should be presumed that it the time the final decree was passed the minor was properly represented.

6. With regard to the admission referred to in the judgment of the lower appellate Court on which the plaintiffs rely, this must be construed strictly and not extended by speculation. All that the admission states is that the parties were, agreed that no order was obtained from the Court for the removal of the guardian ad litem appointed to represent the, minors at the trial and for the appointment of Khosali Mandal to represent them in the execution proceedings. So; far as the first part of this admission is concerned, it does not preclude the possibility that he guardian ad litem was not alive at the time as the execution proceedings, and as the question was not rai3ed at the trial, the materials are not available on the record, for the determination of the matter. So far as the; second part of the admission is concerned, namely, that there was no formal order for the appointment of Khosali Mandal to represent the minors in the execution proceedings, the decisions to which I have referred are clear that, provided the interest of the minors was effectively represented in the execution proceedings, a mere defect in the appointment of the guardian does not suffice to invalidate the sale in the absence of proof that the minors were prejudiced.

7. In the present case, the execution Bale is not challenged by the minors, and there is no reason to apprehend that their interests were prejudiced. The appeal must, therefore, be dismissed with costs.

Meredith J.

I agree.