EDA PONNAYYA Vs. JANGALA KAMA KOTAYYA

JUDGEMENT

(1.) We take the facts in this case to be that the father of the present appellants was appointed their guardian ad litem, although he had never appeared and consented to his appointment, and that the suit was afterwards decreed against them ex parte. The lower Court has refused to set aside that decree on the ground that the procedure provided by Order 9 Rule 13 of the Civil Procedure Code cannot be applied to it.

(2.) The appointment of the guardian was certainly bad in the circumstances; and the minors must therefore be taken to have been unrepresented. The question is then whether Order 9 Rule 13 is applicable. We have been referred to two decisions of this Court and certain decisions of the Allahabad High Court to show that it is. The Allahabad decisions however, of which the latest is Bhagwan Dayal v. Puram Sukh Das (1916) I.L.R. 39 All 8. were given without reference to the principle, which in my opinion governs the case and the judgment of the Judicial Committee, to which I shall refer. My learned brother s decision in Sharoof Sahib v. Raghunatha Sivaji (1915) 18 M.L.T. 401 appears to have turned on the invalidity of the guardian s appointment, the application of Order 9 Rule 13 not having been disputed and my own decision in Adyapadi Ramanna Udpa v. Krishna Udpa dealt with the negligence of a regularly appointed guardian and the question whether it could be regarded as " sufficient cause" within the meaning of the rule.

(3.) The proper principle to apply however is that the minor, if he is not properly represented, cannot be regarded as a party to the proceedings at all, they therefore cannot bind him and there can be no question of his having been prevented by any sufficient cause from conducting them. This follows from Rashid- un-nissa v. Mahomed Ismail Khan (1909) I.L.R. 81 All. 572 : 19 M.L.J. 631 in which it was held that, the appointment of a guardian not having been valid, the litigation she had conducted on behalf of the minor was a nullity and the minor was not a party to it for the purpose of Section 244 of the former Code. This ground of decision is implied in lower Court s reference to the possibility that the minors may be entitled to treat the decree passed as not binding on them. Adopting it, I would dismiss the appeal with costs. Seshagiri Aiyar, J.