JUDGMENT Henry Richards, C.J. and Pramada Charan Banerji, J.
1. This appeal arises out of a suit in which the plaintiffs claimed a declaration that a decree obtained against them ex parte on the 30th of August, 1911, was null and void as against them. The decree in question was a decree obtained on foot of a mortgage alleged to have been executed by the father of the plaintiffs and their uncle Raghubir Sahai. The facts are as follows. The plaintiffs were at the time of the institution of the mortgage suit and still are minors. The plaintiffs in the previous suit sought to implead them as defendants through the said Raghubir Sahai as their guardian ad litem. Raghubir Sahai refused to be the guardian ad litem and informed the court that the minors lived with their mother and not with him. Eventually the court appointed the Amin as the guardian ad litem of the minors. This order was made without any notice having been given to the minors, or to their mother in whose care they were. There was no appointed or natural guardian other than the mother. It is not pretended that the court required the plaintiff to deposit any sum of money to enable the court Amin to employ a pleader, or to make any inquiry as to the minors defence. Nor is it pretended that the court Amin did in fact take any step to defend the case or to inquire whether there was a defence. An ex parte decree was granted on the 30th of August, 1911. An attempt was made on behalf of the minors through their mother to have the case restored, but this application was refused. The present suit was then instituted.
2. Both the courts below have dismissed the suit, and the plaintiffs come here in second appeal. There can be no doubt that there was great irregularity in the proceedings prior to the granting of the ex parte decree. The provisions of order XXXII, rule 3, were not observed. The courts below, however, were of opinion that the decree was not void and could not be set aside on account of the irregularity. They refer to the cases of Walian v. Banke Behari Pershad Singh (1903) I.L.R. 30 Cale. 1021 and Munnu Lal v. Ghulam Abbas (1910) I.L.R. 32 All. 287. We think the courts below were wrong. Assuming that the decree is not a nullity, that in itself would not be a sufficient ground for dismissing the plaintiffs' suit. The court ought to have considered whether the plaintiffs were prejudiced by the irregularity. If the minors had no opportunity of putting forward a defence to the suit, or, in other words, if they were not represented in the court below, they would be prejudiced. It seems to us that the appointment of an officer of the court as guardian ad litem of minors without requiring the party at whose instance he is appointed to deposit the necessary funds to enable the guardian to defend the case, is generally little more than a farce. If however, in the present case the order had been made with notice to the mother she might have objected to the appointment of the Amin, or at least have given him instructions as to the defence of the minors. There is no real hardship in requiring the party to deposit money to enable the court official to inquire and get instructions on behalf of minors. If the party is successful in the litigation, the funds so deposited can be subsequently recovered. In the case of Walian v. Banke Behari Pershad Singh (1903) I.L.R. 30 Cale. 1021 the minors had been sued and had appeared throughout the proceedings with their mother as guardian ad litem. The irregularity in the case was the absence from the record of a formal order appointing the mother guardian ad litem. The mother was the person who would naturally have been appointed guardian had an application been made. By appearing in the proceedings she showed that she had no objection to being guardian. The decree was granted in the year 1881 and the suit challenging its validity was not instituted until January, 1895. Their Lordships held that the minors were "substantially" sued in the former suit. Their Lordships quote from the Judgment of the High Court the following words : - "It is necessary that the court should see that a proper guardian be appointed to protect their interest. Section 443 of the Code is imperative on this point." Their Lordships then say : - "In this statement of the law their Lordships entirely concur and they desire to impress upon all the courts in India the importance of following strictly the rules laid down in the section referred to." After this statement it seems to us impossible to contend that minors cannot have a decree declared not binding on thorn under circumstances like the present where the appointment of the guardian was not only irregular but where in fact a decree was made without even notice to the minors. In Munnu Lal v. Ghulam Abbas (1910) I.L.R. 32 All. 287 the only irregularity was the absence of the affidavit specified in Section 457 of the Code of Civil Procedure, 1882. This case was even a weaker one than the case above referred to. The minors wore clearly "substantially" represented and had every opportunity of putting forward their defence. It is contended by the learned advocate on behalf of the respondent that the only remedy the minors had was to apply to have the ex parte decree set aside under the provisions of order IX, rule 13, of the Code of Civil Procedure. This rule enables a defendant who has not been served with the summons, or was prevented by soma sufficient cause from appearing when the suit was called on for hearing, to have an ex parte decree set aside. It is argued that the defendant against whom an ex parte decree has been made who neglects to avail himself of the provisions of this rule, cannot afterwards bring an independent suit. This may be so. But this is not the case here. If the minors were parties to the suit the only person who could make an application to have the ex parte decree set aside would be the court Amin who was their irregularly appointed guardian ad litem. No such application was made by him. In our opinion we have to see whether the irregularity in the present case prejudiced or may have prejudiced the minors. Holding, as we do, that the minors were never properly represented and that the decree was made without notice to them or their natural guardian, we think that they are entitled to the declaration sought in the present suit.
3. We accordingly allow the appeal, set aside the decrees of both the courts below and decree the plaintiffs' claim with costs in all courts.