Beevor, J.This is an appeal by the defendants against a decision of the Additional Subordinate Judge of Darbhanga who, reversing the decision of the first Munsif of Darbhanga, has, on appeal, decreed, a suit for a declaration that a decree passed in mortgage suit. No. 199 of 1934 and the sale held in execution thereof in Execution case No. 672 of 1936 on 21-12-1936, and the delivery of possession following thereon are null and void and are not binding on the plaintiff-respondents and for recovery of possession of the land.

2. The three plaintiff-respondents are brothers of whom one is still a minor. Mortgage Suit No. 199 of 1931 was brought against the plaintiffs and their father to enforce a simple mortgage bond dated 7-12-1933 executed by the plaintiffs father. The suit was dismissed against the present plaintiffs, who were then minors, for default on the failure of the present appellants, who were then plaintiffs, to get a guardian-ad-litem appointed for them on payment of the necessary fees. After the suit had been so dismissed as against the sons, a preliminary mortgage decree for sale was passed against the father and on 16-3-1936 an application was filed to make the decree absolute. That application was, however, struck off for failure to prove service of notice on 20-6-1936, and on 27-6-1986 a second application for making the decree absolute was filed, and after the issue of a certain notice and receipt of service return a final decree was passed on 27-7-1986. Before the application for final decree was made, the father of the plaintiff-respondents had died and one of the questions raised in this appeal relates to the effect of the proceedings for final decree which were taken against the present plaintiff-respondents, who were then minors. On 1-9-1936 an application for execution of the decree Was filed and in the execution case started thereon the property was sold and purchased by the appellants on 21st December 1956. After delivery of possession was taken by the appellants as auction-purchasers, the respondents instituted the suit, out of which this appeal arises, for the reliefs indicated above. They denied that there was any debt owing by their father or any legal necessity for the mortgage. They alleged that the suit and the decree obtained against their father were fraudulent and collusive. They denied that their mother was their natural guardian after their fathers death and denied that any notice was served on her or on them in the proceedings for final decree or for execution.

3. The plaintiff-respondents were all minors until after the execution sale which is now challenged. The Munsif in the trial Court held that consideration for the mortgage in question passed and that the mortgage was executed to pay off an antecedent debt of the plaintiffs, father which was due on a certain hand note. He found that the plaintiffs mother was their natural guardian and that notice for the final decree and also notice under Order 21, Rule 22, Civil P.C. in execution were served on her. He found that the mother did not appear in the suit or in the execution proceedings and that no other guardian ad litem was appointed for the minor plaintiffs either in the suit or in the execution proceedings and he found that there was no formal order appointing the mother as guardian ad litem. On these facts he took the view that the final decree could not be held to be a nullity by reason of the absence of any formal order appointing the mother as guardian ad litem, and held that the final decree was binding on the plaintiffs. He held that as notice under Order 21, Rule 22 was served "on the plaintiffs and their mother" the sale in execution of the decree was binding on the plaintiffs.

4. On appeal the learned Subordinate Judge in his judgment stated that the findings of the trial Court (i) that the mortgage bond was genuine and for consideration, (ii) that the plaintiffs were under the guardianship of their mother after the death of their father, and (iii) that notices of the final decree and the execution proceedings were served on the plaintiffs mother, were not challenged before him. But ha held that the suit was decreed against the plaintiffs without any guardian and they were not at all represented in the final decree proceedings and, therefore, they were not bound by the final decree or any proceedings in connection with it and that as against them the decree would be a nullity. He also held that the plaintiffs were not represented in the execution proceedings, that the Court had no jurisdiction to sell their property and that the sale, therefore, was a nullity.

5. Now the final mortgage decree is not on the record. There is, therefore, nothing to show whether any person was described therein as the guardian ad litem of the present plaintiffs.

6. This appeal first came before Shearer J. who considered that the case should be heard by a Divisional Bench because the point in issue was referred to a Divisional Bench by Dhavle J. in 1987, but the decision resulting from the reference was based largely on the facts of the particular case. The decision, to which he was referring, is Baraik Ram Gobind Singh v. Chowra Uraon AIR 1938 Pat. 97 . In the course of his order of reference Dhavle J. stated al page 637 of the report:

About the guardians ad litem for the minors there is a great deal of conflict of opinion regarding the effect of absence of proof that the guardian had consented to his appointment. The question was elaborately considered by Das J. in Satdeo Narain v. Ramayan Tiwari AIR 1923 Pat. 242 . The learned Judges views, however, have provoked comment in other quarters: see the decision of Bankia C.J. in Satis Chandra Bandopadhya and Others Vs. Hashem Ali Kazi and Others, and is not consistent with the views expressed in several reported decisions of this Court, Rampirit Prasad v. Thakur Saran AIR 1921 Pat. 293 , Chhattra Kumari Devi v. Panda Radha AIR 1922 Pat. 291 and Sajjad Husain v. Sakal Rai AIR 1922 Pat. 448 (a decision to which Das J. was a party).

Madan J. delivering the judgment, with which Courtney. Terrell C.J. agreed, stated at page 641:

In suits Nos. 86 and 87 the decrees themselves have been found to be a nullity. In Chhattra Kumari Devi v. Panda Radha Mohan Singari AIR 1922 Pat. 291 it has been held that in the case of minor defendants the Court must see not merely that a guardian in appointed, but that the guardian has consented to act. In this case the defendants were minors, and notices were served on them through their mothers as guardian. No appearance was made on their behalf, and there is no order of the Court appointing the mothers as their guardians or showing that the guardians consented to act on their behalf. In the circumstances the decrees were rightly found to be a nullity. The result is that I find no reason to. interfere with the decision of the learned Subordinate Judge in regard to any of the suits, and I would therefore dismiss these appeals. The plaintiffs are entitled to be restored forthwith to possession of their holdings.

7. The judgment of Das J., to which, refer, once was made by Dhavle J. is that in Satdeo Narain v. Ramayan Tiwari AIR 1923 Pat. 242 . The substantial point made by him seems to be embodied in a passage at page 352 of the report:

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 defeat or the irregularity in the proceedings affected the merits of the case between the parties.

He relied in this connection on the decision of the Judicial Committee in Mt. Bibi Walian v. Banke Behari Pershad Singh (03) 30 I.A. 182.

8. The case before the Privy Council was a case in which certain persons sued to avoid a decree and an auction sale. One of the grounds taken was that they were minors at the time and no guardian in the suit was duly appointed for them. While dealing with the facts their Lordships stated at p. 187:

The alleged defects which remain are, first, that the present plaintiffs were not properly represented in that suit, that they were not properly served with summons in the suit; and that they were not properly served in the execution proceedings.

As to the first of these points, the mother of the present plaintiffs appears throughout the proceedings in the former suit as their guardian. It is impossible at this distance of time to ascertain positively whether an order appointing her guardian ad litem was ever drawn up; but the Subordinate Judge in the present case assumed that there had been none and he was probably right. 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 here; and that similar language was used in the execution proceedings.

Later at p. 189 their Lordships held that the then plaintiffs were effectively represented in the suit by their mother, and with the sanction of the Court. At p. 185 in their Lordships judgment it was stated that the decree was an ex parte one, and in the statement of facts at p. 183 it was stated that among the findings of the first Court there was a finding that "the minors were not prejudiced by the widows silence." The widow was the mother of the minors. It appears, therefore, clear that she did not make any appearance in the suit on behalf of the minors though her name appeared on the record as guardian ad litem.

9. The case in Chhattra Kumari Devi v. Panda Radha Mohan Singari AIR 1922 Pat. 291 was a case in which no notice or summons was served on the natural guardian.

10. In the present case as the decree is not on the record there is nothing to show that the name of any person appeared in the record of the suit as guardian ad litem recognised by the Court. It is true that in the notice for final decree the present plaintiffs were described as under the guardianship of their mother, but such notices are filled up by the parties, and under Order 32, Rule 2, Sub-rule (4) no appointment of a guardian ad litem could be made by the Court except upon notice to the mother who was the natural guardian. The Court could, therefore, hardly refuse to issue the notice in the first instance to the mother as natural guardian and, therefore, in my opinion the issue of this notice by the Court did not amount to any sanction by the Court to authorise the mother to act as guardian ad litem or a recognition of the mother as guardian ad litem.

11. In my opinion in this case it is not established that there was any person on the record of the suit at the time of the final decree as guardian ad litem of the present plaintiffs and no person was proved to have been recognised as such by the Court quite apart from the question whether there was any formal order of appointment. In this view of the matter I am of opinion that on the rulings above cited there was no decree against the present plaintiffs at all and they were never in any real sense parties to that decree.

12. If, however, this case depended entirely on the question whether the decree might bind the minors, I think it might be necessary to examine a little more closely the question whether the mere notice to the mother might not in the-circumstances of this case be sufficient to achieve-the result that they were effectively represented in the suit because on the finding that the mortgage was executed for payment of an antecedent debt of the father there was no possible defence which could successfully be raised on behalf of the present plaintiffs. In fact it has-been held by the Allahabad High Court in Kalloo and Another Vs. Niadar Singh and Another, that it would not have been open to the present plaintiffs in the proceedings for final decree to challenge the preliminary decree. The case before the Allahabad High Court was another case in which the plaintiffs father died after a preliminary decree had been obtained against him alone on the basis of a mortgage. On the fathers death his sons as his legal representatives claimed in the proceedings for final decree to challenge the validity of the mortgage on the basis that it was not executed for legal necessity. The Court held that they could not raise the question at that stage because the Court in proceedings for final decree could not go behind the preliminary decree.

13. The present case does not, however, entirely depend on the question how far the mortgage decree might be effective against the present plaintiffs. There is the further question regarding sale. It has been held by this Court that if no notice is issued under Order 21, Rule 22, Civil P.C. the sale held in the execution proceedings is without jurisdiction and void: vide the decision of the Full Bench in Ajab Lal Dubey v. Hari Charan AIR 1945 Pat. 1 .

14. In this case a notice under Order 21, Rule. 22 was issued and served on the mother according to the findings of the lower Courts. Had a guardian ad litem been appointed for the plaintiffs in the suit, then under Order 32, Rule 3, Sub-rule (6) his appointment would have continued as valid for the proceedings in execution, but I do not think the same principle can possibly be applied when the most that can be said against the present plaintiffs is that they were effectively represented in the suit, although no guardian ad litem was appointed on their behalf. Again I do not think that mere issue of the notice under Order. 21, Rule 22 in the name of the mother could amount to an appointment or even a recognition of her as guardian ad litem of the present plaintiffs in the execution proceedings.

15. In my opinion the issue of the notice under Order 21, Rule 22 had an effect at all unless it was issued in the name of a person who had either been appointed or recognition by the Court as guardian ad litem, and, therefore, in the present case the position, so far as the present plaintiffs are concerned, is exactly the same as if no notice had been issued under Order 21, Rule 22 at all.

16. For these reasons I would dismiss this appeal with costs.

Bennett, J.

17. A minor is not bound by any proceedings taken against him during his minority unless he was a party thereto. Whether a minor was or was not a party to any such proceedings depends, in my opinion, upon whether or not he was effectively represented therein. The judgment of the Judicial Committee in Mt. Bibi Walian v. Banke Behari Pershad Singh (03) 30 I.A. 182 makes it clear that the failure to comply with the letter of Order 32, Civil P.C. will not prevent the minor being bound by the decision in any proceedings, if, in fact, in the circumstances of the particular case, he can properly be said to have been effectively represented therein. Order 32, Civil P.C. does not deal with substantive rights and only provides a statutory means of securing the representation of a minor in civil proceedings. There is nothing in that order to indicate that provided that the letter of the order is followed, the minor will be bound by the decision, although in fact he. was never effectively represented in the proceedings. Nor, in my opinion, can such an intention, which is against the dictates of justice, equity and good conscience, in that it would open the door to undetectable fraud whereby many minors would be deprived of their rights and inheritance, be (attributed to the Legislature.

18. When, therefore, any question arises as to whether a person is bound by any decree or order of a civil Court passed during his minority, the proper and only test, in my opinion, is whether he was so effectively represented in the proceedings leading to the decree or order in question as in justice, equity and good conscience to justify, in the circumstances of the particular case, the conclusion that he was in fact a party to those proceedings. All such questions as to whether a guardian ad litem was duly appointed or recognised by the Court either under the provisions of Order 32 or otherwise or whether the guardian so appointed had consented to act or whether some notice required by Order 32, or, subjeot thereto, by any other provision of law or whether the guardian actually appeared in the proceedings or whether the guardian took the proper and necessary steps to safeguard the interests of the minor, are, in my opinion, entirely subordinate to the test of effective representation and no one of them constitutes in the circumstances of every case a complete answer to that test. Where a guardian ad litem has been duly appointed by the Court and has appeared in the proceedings, the prima facie inference is that the minor was effectively represented and the onus will no doubt be heavily upon him, when he comes of age, to show that nevertheless he was not so effectively represented. Where there has been no: due appointment of and no appearance by a guardian" ad litem, the prima facie inference is that, the minor was not effectively represented in the proceedings and the onus lies heavily upon the person seeking to rely upon the decree or order to show that the minor was nevertheless effectively represented therein. In between these two extremes the onus will vary according to the particular circumstances of the Case.

19. In the circumstances of this case, which have been set out by my learned brother, I am of opinion that the plaintiffs, who were then minors, were not effectively represented either in M.S. No. 199 of 1934 or in the subsequent execution proceedings and therefore that they were not parties to and, so, are not bound by either of these proceedings.

20. I find myself, very respectfully, unable to follow the decision in Kalloo and Another Vs. Niadar Singh and Another, referred to by my learned brother, in so far as that decision applies to the facts of this case. The plaintiffs in M.S. No. 199 of 1934, the present defendants, chose to make the present plaintiffs parties to that suit and the suit was later dismissed against them for default of appointment of a guardian ad litem. It follows that the preliminary decree was against their father in his personal capacity only.

21. In those circumstances, it appears to me idle to contend that the present plaintiffs, except solely as the legal representatives of the personal estate of their father, would have been bound by the preliminary decree in that suit. It seems to me that if the present defendants had later applied in that suit to add the present plaintiffs as defendants thereto in any other capacity, the present plaintiffs could successfully have resisted that application on the grounds that the suit against them had already been dismissed and that the interest of there father in the mortgaged property ceased on his death. It therefore seems proper to me to affirm the decision of the learned Subordinate Judge both as to the decree in M.S. No. 199 of 1934 and as to the subsequent execution proceedings and sale.

22. I, therefore, agree that the appeal should be dismissed with costs.