1. This appeal arises out of an action to recover possession of the disputed property with mesne profits alter setting aside an ex parte decree and auction sale held thereunder.

2. The suit of the plaintiff has been decreed by the Subordinate Judge of Muzaffarpur by his judgment, dated the 19th of March 1919. The defendant is the appellant before us. She had instituted a suit against the plaintiff for recovery of road and embankment cess before the Munsiff of Motihari and obtained an ex parte decree on the 19th of November 1912. This decree was executed and the birt in question was purchased by the defendant. The delivery of possession took place through the Court in May 1913.

3. The grounds urged in the plaint for setting aside the ex parte decree and the subsequent proceedings are that (1) the decree in question was obtained by means of fraud resorted to by the decree-holder in suppressing the notice and summons and the process in the suit and the execution proceedings thereby preventing the present plaintiff from the knowledge of the suit and the proceedings, (2) that the property worth Rs. 10,000 was thus purchased by the defendant at a grossly inadequate price of Rs. 162-8-0 and (3) that the plaintiff suffered a serious loss and injury on account of the fraudulent action of the defendant. The defence was a denial of the charge of fraud and it was assorted that no fraud was committed in connection with the suit and the execution proceedings. It is also alleged that the plaintiff's mother and guardian had full knowledge about the suit and that the price of the property fetched at the auction sale was not inadequate.

4. The Court below held that the fact stated by the plaintiff was proved that the ex parte decree in question was obtained by the defendant by means of fraud and that the decree obtained against the plaintiff was null and void inasmuch as no guardian ad litem was appointed on behalf of the minor to protect his interest in the suit under Order 32 of the Code of Civil procedure. The Court below also held that the price fetched was grossly inadequate inasmuch as the total collections of the disputed property will be about Rs. 197, whereas it was sold for Rs. 162-8 only. The Court below has therefore decreed the plaintiff's suit directing possession to be delivered to the plaintiff with mesne profits. The defendant has, therefore, come to us in appeal.

5. Mr. Purnendu Narain Sinha on behalf of the appellant urges that the Court below has not recorded a sufficient finding of fraud in order to hold that the decree in question was vitiated by reason of fraud committed by the defendant in obtaining the ex-parte decree in question. He further says that there is no evidence of such a fraud. The evidence in the case consists of the plaintiff's mother and her Karpardaz. They deny the service of summons or notice upon them and knowledge of the suit in which the defendant obtained the decree in question. On behalf of the defendant no evidence of service of the notice or summons in the case was adduced. The evidence on the point was therefore one sided and the Court below has accepted that evidence. The finding of the Court below that no notice or summons was served upon the plaintiff and his mother must be accepted as unassailable.

6. There is, however, a good deal of force in the contention of Mr. Purnendu Narain Sinha that this finding alone is not sufficient to infer in law a finding of fraud, and the learned Subordinate Judge is wrong in holding that the aforesaid finding "constitutes fraud which vitiates the ex parte decree obtained by the defendant against the plaintiff". It is concluded by authorities that the mere non-service of summons is no evidence of fraud. The summons might not have been served on account of the laches of the Court peon or on account of other reasons. In order to charge a party with fraud in the suppression of summons it is essential to prove that the non-service was the result of some active part taken by that party in not having the summons served and thereby keeping the opposite party from the knowledge of the suit. The point is so clear that now it hardly need support of any authority. I, therefore, agree with the contention of Mr. Purnendu Narain Sinha that the court below has not recorded a sufficient finding to attribute fraud on the part of the defendant in obtaining the ex parte decree in question. If that were the only ground upon which the decree obtained by the defendant was attacked, then the plaintiff's suit would have been dismissed and the appeal would have been allowed; but the learned Subordinate Judge has come to a finding that the plaintiff in the suit in which an ex parte decree was passed against him was not represented at all. No guardian ad-litem of the plaintiff was at all appointed by the Court. This finding of the Subordinate Judge is borne out by the order sheet of the original suit No. 876 of 1912 (Exhibit 4). On the 9th of September 1912, the Court directed notice to issue on the minor defendant and the proposed guardian ad litem and summons on the defendant fixing the 4th of October 1912 for appointment of a guardian of the minor. After some adjournment on account of the non-receipt of the service of summons the case was ultimately taken up on the 19th of November. On that date the court recorded the following order:

"This suit and suit No. 876 of 1912 tried together. Defendant absent. Service proved. Plaintiff examined Dip Narain Lal. Such decreed ex parte with costs".

7. It is thus clear that although an order was passed by the Court to issue notice upon the proposed guardian, no order was passed appointing any guardian, nor did any guardian appear in the case on behalf of the minor, and as the evidence stands no summons or notice was served upon the guardian or minor as is required by Order 32, rule 3, clause (4). Rule 3 of that Order makes it imperative upon the Court to appoint a person to be guardian for the suit on behalf of a minor. Under rule 4, clause (3) no person can be appointed a guardian for the suit without his consent. Therefore according to the provisions in the Code of Civil Procedure when there is a minor defendant in a suit it is incumbent upon the Court to appoint a guardian with his consent to act as a guardian in the suit on behalf of the minor.

8. Now, it has been held in a large number of cases that where the court has by its action given its sanction for the appearance of a person as guardian, the absence of a formal order of appointment is not necessarily fatal to the proceedings. In other words a mere irregularity in the appointment of a guardian ad litem will not render the decree obtained against the minor null and void unless the interest of the minor has suffered by reason of such an irregularity. The leading decision upon the subject is that of their Lordships of the Judicial Committee in the case of Walian v. Banke Bihary Prasad Singh (1903) 30 Cal. 1021=30 I. A. 182=8 Sar. 512 (P.C.). Vide also Paresh Nath Mallick v. Hari Charan Dey (1911) 38 Cal. 622=10 I. C. 361=15 C. W. N. 875; Nagendra Nath Bose v. Parbati Charan and another (1914) 20 C. W. N. 819=35 I. C. 339; Surajdeo Narain Missir v. Surju Prasad Missir (1917) 2 P.L.J. 390=40 I.C. 227=1917 P.H.C.C. 198; Ram Asray Singh v. Sheonandan Singh (1916) 1 P.L.J 573=35 I.C. 868=1917 P.H.C.C. 2 (F.B.), Keshawesarindra Sahi v. Rani Debendra Bala Dassi (1915) 29 I. C. 211 and Chhatter Singh v. Tej Singh and others (1920) 59 I.C. 671=19 A.L.J. 956. In most of these cases the guardian did act on behalf of the minor in the case and his interest therefore was profited. Consequently in those cases it could not be said that the minor was not represented, though the representation was not formally sanctioned by the Court.

9. In some of those cases it would be noticed that the Court itself permitted the guardian to act on behalf of the minor and the guardian was therefore acting with the full knowledge and approval of the Court but here the case is of a different character. The mother of the minor who is his guardian did not know of the suit. No notice or summons was served upon her. No order of the Court was passed appointing her as guardian. Nor present either express or implied was given by her and at no stage of the case she entered appearance. Therefore the suit was decreed against the minor without any guardian and the minor was not at all represented in the suit. He is therefore not at all bound by the decree or any proceeding in connection with that decree. Baneswar Pramanik v. Tarapada Bhattacharjee (1917) 26 C.L.J. 258=41 I.C. 872; Bhagwan Dayal v. Param Sukh Das (1915)37 All. 179=27 I.C. 623=18 A.L.J. 179; Narendra Chandra Mondol v. Jogendra Narain Rai (1914) 20 C.L.J. 469=27 I.C. 139 19 C.W.N. 537; Sadashiv Bamchandra Datar v. Trimbak Keshav Vaze (1920) 44 Bom. 202 =56 I. C. 399=22 Bom. L. R. 266; Eda Punnayya v. Jangala Kama Kotayy  (1919) 37 M.L.J. 399=53 I.C. 184=1920 M.W.N. 1; Lala Rampirit Prasad v. Babu Thakur Saran A.I.R. 1921 Pat. 298 =1921 P. H. C. C. 335. The principle has been recognised in the well known decision of their Lordships of the Judicial Committee in Rashid-un-nisa v. Muhammad Ismail Khan (1909) 31 All. 572=36 I.A. 168=3 I.C. 864=6 A.L.J. 822 (P.C.). Therefore the ex parte decree in question was not binding upon the plaintiff and was null and void. His interest in the property could not therefore be affected by the sale in execution of the decree.

10. Mr. Parnendu Narain Sinha, however, contends that this point was not taken in the plaint nor was any issue raised and consequently no proper opportunity was given to the defendant to rebut it. It appears, however that the order sheet of the case was filed and used as evidence behalf of the plaintiff (marked Exhibit 4). Upon the face of that order sheet the plaintiff was not represented the suit. It appears that on the date when the present case was taken up, that is the 14th of March 1919, after the close of the plaintiff's case, the defendant wanted time on the allegation that her witnesses had missed the train and could not come that day. The Court grafted adjournment on payment of Rs. 20 as costs. Mr. Kennedy, the defendant's Vakil, then intimated to the Court that his client was not willing to pay costs. The petition for time was accordingly rejected and the case was decided only upon the evidence adduced on behalf of the plaintiff. Therefore the defendant had full opportunity to rebut the case made by the plaintiff in evidence. Therefore there is not much substance in the contention of the appellant. In fact, no evidence is required and no evidence would be available to rebut the documentary evidence in the shape of the order sheet in the case. The Court has held upon evidence that no notice was served and there is no order of the Court appointing any guardian of the plaintiff. This is a stubborn fact and will not be upset by any amount of evidence. Therefore we are not prepared to remand the case to enable the defendant to give evidence in the case. He had full opportunity and no further evidence is possible.

11. We also note that even if the non-representation of the plaintiff in the original suit was due to any irregularity, we find that the learned Subordinate Judge has come to a clear finding upon evidence on the record that the property in suit was sold for a very inadequate price. The case of the plaintiff is that he is not bound to pay the embankment cess for which the ex parte decree was obtained by the defendant. Therefore there is no question that the plaintiff has been prejudiced by reason of the non-appointment of a guardian in the case.

12. For all these reasons we uphold the decision of the Court below and dismiss the appeal with costs throughout.