Das, J.

1. This is an appeal on behalf of the decree-holder against an order of the learned Subordinate Judge of Muzafferpore dismissing the execution on the ground that the minor judgment-debtor was not properly represented in the action. The material facts are these:-

The plaint was admitted on the 17th November 1913. On the 9th January 1914, the Plaintiff applied to the Court for the appointment of Ram Bahadur, the eldest brother of the minor, as the guardian ad litem for the minor Defendant. It is not disputed that Ram Bahadur and the minor Defendant formed a joint family and that Ram Bahadur was managing member of the family. On the 4th of March 1914 Ram Bahadur appeared in Court and expressed his disinclination to act as the guardian ad litem for the minor Defendant. On the 30th April 1914 the Court appointed one Goodar Nath Pandey as the guardian ad litem. On the 20th May 1915 Goodar Nath Pandey being absent, the Court appointed one Nirbhay Singh as the guardian ad litem for the minor Defendant. The suit was then compromised and a consent decree was passed in the suit.

2. The grounds upon which the learned Subordinate Judge has proceeded are these: First, that there is nothing to show that notice or summons was served on the minor after the appointment of Goodar Nath Pandey as the guardian ad litem; secondly, that the Plaintiff should have proposed the mother of the minor as the guardian ad litem and thirdly, that no notice was served on the minor informing him of the intention of the Court to discharge Goodar Nath Pandey as the guardian ad litem. On these grounds the learned Subordinate Judge came to the conclusion that the decree against the minor was void ab initio and that he could disregard the decree in the execution proceedings.

3. In my judgment the view taken by the learned Subordinate Judge is erroneous and cannot be supported. In the first place there is no provision in the Civil Procedure Code which required the Court to give any notice to a minor of the appointment of a guardian ad litem after such appointment. Mr. Das contended before us that what the Court intended to find was that the notice was not served on the minor in accordance with the provision of the 4th paragraph of Or. 32, r. 3; but that is certainly not the finding of the learned Subordinate Judge and on the materials before him he could not have come to the conclusion that notice was not served in accordance with the provisions of the Code.

4. On the second point, I certainly think that the proper person to be appointed as guardian ad litem was the mother of the minor, that is to say, the natural guardian of the minor; but I am unable to say that the decree is a nullity because the Plaintiff instead of nominating the mother nominated his brother who was undoubtedly the karta of the joint family and would represent the minor in all joint family transactions.

5. The third point raises a question of some difficulty but I have come to the conclusion that though the Court should in every case consult the wishes of a minor before appointing any person as guardian ad litem in the suit, there is nothing in the Code which requires it to do so in a case contemplated by Or. 32, r. 11. It will be noticed that paragraph 4 of Or 32 r.3 applies only to a case contemplated, by r. 3, that is to say, to a case where an application is made for the appointment of a guardian in the name or on behalf of a minor or by the Plaintiff. R. 11 gives the Court power to appoint any guardian where the guardian for the suit retires, dies or is removed by the Court during the pendency of the suit, and there is nothing in the Code which requires the Court to give notice to the minor before making the order under r. 11. The case of Rajendra Prasad v. Prabodh Chandra Mitra (1920) 2 P.L.T. 116: 6 P.L.J. 82: 59 I.C. 936 is not an authority for the view that an order under r. 11, if made without notice to the minor, is a nullity. In that case the order of the learned Subordinate Judge appointing a person as guardian against the express wishes of the minor was challenged in the same proceedings and the Court had no difficulty in setting aside the order. But it is one thing to say that an order is without jurisdiction within the meaning of the terms as used in S. 115 of the Code, it is another thing to say that the order is void in the sense that the decree which is ultimately made may be disregarded by the Court executing the decree.

6. I would allow the appeal, set aside the order passed by the learned Subordinate Judge, and direct the execution to proceed.

7. The Appellants are entitled to the costs of this appeal.

L.C. Adami, J.

8. I agree.