JUDGMENT Niamatullah, J.
1. This is an appeal from an order of remand and arises from a suit brought by the plaintiffs appellants for setting aside a decree obtained by defendant 1 against defendant 2 and the plaintiffs, who were minors and were represented in that litigation by defendant 2. To appreciate the position of the parties and the decisions of the two Courts below, the following facts have to be considered. Defendant 1 is a firm styled Gopal Rai Phool Chand, carrying on business at Ghazipur. Defendant 2, Raghunandan Prasad, carried on business in Zamaniah in the Ghazipur District in the name of Chhannu Lal Raghunandan Prasad. Chhannu Lal was the brother of Raghunandan Prasad and had died sometime before the transactions began, leaving several minor sons, who are plaintiffs in the present suit. One of these sons, Radhey Shyam, has since attained majority and is suing for himself and as guardian of his minor brothers. Raghunandan Prasad used to make purchases from the firm Gopal Rai Phool Chand of cloth which he sold at his own shop in Zamaniah. He made such purchases between the dates 14th April 1919 and 2nd August 1920 which was the last date on which any transaction was entered into between the two. The balance due to the creditor firm on that date was Rs. 473-9-0. No payment was made afterwards, and the balance remained constant in the years 1921 to 1923, except for the addition of Rs. 170-7-0 as interest shown in the account, of the creditor firm. On 22nd September 1923 Raghunandan Prasad signed an acknowledgment of liability in the account books of defendant 1 for the sum of Rs. 644, which was made up of Rs. 473-9-0 principal and Rs. 170-7-0 interest. Defendant 1 instituted suit No. 628 of 1926 for recovery of the aforesaid amount with interest from the date of the acknowledgment, impleading Raghunandan Prasad and his minor nephews (the present plaintiffs). Raghunandan Prasad was appointed guardian ad litem of his nephews. No notice of the nature required by Order 32, Rule 3(4), Civil P.C., to the mother of the minor defendants or to the minor defendants themselves, one of whom was of 10 years of age, was sent. The case was fixed for 24th November 1926. A few days before the date fixed Raghunandan Prasad filed, on 17th November 1926, a compromise admitting the claim on behalf of himself and his minor nephews. Accordingly a decree was passed against all the defendants, including the minors. Subsequently, Raghunandan Prasad was adjudged insolvent, and probably the decree was sought to be executed against the minors, who then were advised to institute the suit which has given rise to this appeal for setting aside the decree passed in suit No. 628 of 1926.
2. It is alleged in the plaint in the present case that the plaintiffs were separate from their uncle, defendant 1, that the business carried on by him was his personal affair in which they had no interest, that the liability incurred by Raghunandan Prasad on 22nd September 1923, when he signed the acknowledgment, could have no reference to them, who were not bound to pay for the purchases previously made by him, that the claim of defendant 1 had become barred by limitation by 22nd September 1923, when the acknowledgment was made, that in any case, they were not on that date bound to pay to defendant 1 (the plaintiff in the earlier suit), that in the suit which was instituted by him (No. 628 of 1926) Raghunandan Prasad, whose interest in relation to the subject matter of the suit was adverse to that of the plaintiffs, was improperly appointed as their guardian, that no notice of the contemplated appointment of defendant 2 as the plaintiffs' guardian was sent to their mother who alone was fit and proper person to act as their guardian, and that the defendant did not protect their interests and quite improperly admitted the claim of the plaintiffs of that suit, suffering a decree to be passed against them as well as himself. It is alleged that the decree obtained by defendant 1 in the circumstances stated above was the result of a fit and proper person not having been appointed as the plaintiffs' guardian - a fact which seriously prejudiced them. The relief claimed in the plaint is that the decree passed in Suit No. 628 of 1926 be declared to be void and ineffectual as against the plaintiffs.
3. The defence was that the plaintiffs were properly represented in Suit No. 628 of 1926, that the firm Ghhannu Lai Raghunandan Prasad was an ancestral joint family concern in which the plaintiffs were interested, that whatever liability had been incurred by Raghunandan Prasad was and incurred on behalf of the joint family, that the plaintiffs were bound by the acknowledgment made by Raghunandan Prasad on 22nd September 1923 and that the claim of defendant 1 in the afore, said suit was such as should have been reasonably admitted. It is also alleged that the interest of Raghunandan Prasad was in no way adverse to that of the plaintiffs, that there was no irregularity in his appointment as guardian and that, in all the circumstances of the case, he alone was a fit and proper person to be appointed as guardian of his minor nephews. Defendant 2 did not enter appearance and did not contest the suit. The Munsif held that Raghunandan Prasad was not a fit and proper person to be appointed as guardian of his minor nephews and that the minors were seriously prejudiced by his appointment as guardian ad litem. In arriving at that conclusion, he seems to have emphasized the bar of limitation alleged by the plaintiffs. He held that the last of the transactions in respect of which the creditor firm was entitled to Rs. 473-9-0 having taken place more than three years before the acknowledgment of 23rd September 1923, their claim had become barred by limitation. Accordingly the Munsif argued that Raghunandan Prasad, who was responsible for the acknowledgment and who could not repudiate his own action, did not take the plea of limitation as the plaintiffs' guardian. In this way, according to him, the plaintiffs were prejudiced by the improper appointment of Raghunandan Prasad as the guardian ad litem of the, plaintiffs in suit No. 628 of 1926. In the result the Munsif decreed the suit, declaring that the decree in suit No. 628 of 1926 was null and void against the plaintiffs.
4. Defendant 1 preferred an appeal, and the learned Subordinate Judge, who heard it, remanded the case for a fresh decision on a proper consideration of certain questions indicated by him. He has expressed the opinion that the question of limitation should be considered in the light of a recent decision of their Lordships of the Privy Council in Bishun Chand v. Girdhari Lal A.I.R. 1934 P.C. 147 at p. 628, in which an acknowledgment of the nature we are concerned with is said to have been held to be an account stated, giving a different complexion to the point of limitation. The learned Judge also held that the decision of the case necessarily involves a decision of the question whether the shop, carried on by Raghunandan Prasad, was an ancestral concern belonging to Raghunandan Prasad and the plaintiffs, who were found by him to be members of a joint Hindu family and not separate, as alleged by the plaintiffs. The view of the lower appellate Court is that these two questions ought to be decided on the merits for the proper disposal of the present suit.
5. The decision of a case like this, in which the principal question raised by the plaintiffs is whether they were properly represented in the earlier suit, does not depend so much on the merits of the case in which the decree was passed as on the circumstances in which it was passed. If the present suit succeeds and the decree in the earlier suit is set aside or is declared to be void, the proceedings in the earlier suit will have to be re-opened and the suit decided afresh. It will then be time for considering the merits of the plaintiffs' claim and those of the defence put forward by the defendants (present plaintiffs). If such merits are decided in the present case, the other case will be prejudged, which is highly undesirable. At the same time it may be unavoidable for the Court to canvass to some extent the points which form the merits of the earlier case in order to decide whether the present plaintiffs were, in fact, prejudiced by the alleged irregularity in the appointment of a guardian ad litem for them. It seems to me that (sic) decision of the two questions, which the lower appellate Court desires to be finally decided in the present case, will, in a certain contingency, dispose of the earlier case before it is re-opened. What is necessary, in a case like this, may be gathered from Hanuman Prasad v. Muhammad Ishaq (1905) 28 All. 127 in which it was held that:
The provisions of Section 443, Civil P.C., as to the appointment of a guardian ad litem for a minor defendant, are imperative, and where these provisions are not substantially complied with, the minor is not properly represented and any decree which may be passed against him is a nullity.
6. Similarly, in Chhattar Singh v. Tej Singh A.I.R. 1921 All. 393 it was held that where a decree affecting a minor is challenged upon the ground that the minor was not properly represented ins the suit against him, two questions arise : (1) Whether the appointment of the guardian ad litem was irregular, and (2) whether the minor was, in fact, prejudiced by such irregularity. One of the points to be considered by the Court at the time of appointing a guardian ad litem is whether the interest of the proposed guardian is adverse to that of the minor; and if the Court is not apprised of all the circumstances of the case and is, for that reason, not in a position to say that the interest of such guardian is adverse to the minor, whom he is called upon to represent in the suit, but in reality the facts are such that the defence reasonably open to the minor would necessarily raise questions like this to create a conflict between him and the proposed guardian, the appointment of such person as guardian is highly improper. In suit No. 628 of 1926 it was open to the minor defendants to plead that the acknowledgment of 22nd September 1923 was not binding upon them inter alia on the ground that the creditors' claim had become barred by limitation. It was also open to them to plead that the shop Chhannu Lal Raghunandan Prasad belonged to Raghunandan Prasad alone, and the plaintiffs were not liable for any debt incurred in connexion therewith. It is tolerably clear that for the purposes of substantiating these defences Raghunandan Prasad was not the proper guardian ad litem, as his own action was to be impugned and his own interest was likely to come into conflict with that of his minor nephews so far as the liability for the debt was concerned.
7. The Court which appointed Raghunandan Prasad as the guardian ad litem of his minor nephews was probably not aware of the real state of affairs, and for that reason had no hesitation in appointing him as the guardian ad litem of the plaintiffs. Whether it was so or not, the fact remains that Raghunandan Prasad's interest was adverse to those of the1 minors. It is also clear that the minors were seriously prejudiced by his confessing judgment on his own behalf and on that of his minor nephews, the present plaintiffs. If someone else had been appointed their guardian and even if such guardian had allowed the case to proceed ex parte, the Court would not have passed a decree without calling for evidence to establish the liability of the minors under the acknowledgment of 22nd September 1923 or otherwise. For these reasons I am of opinion that a case has been made out for the decree in suit No. 628 of 1926 being set aside on the ground that the present plaintiffs were not properly represented therein and were prejudiced by that fact. It should be distinctly understood that I express no opinion on the question of limitation or on the question whether the shop Chhannu Lal Raghunandan Prasad was an ancestral firm in which the plaintiffs had an interest. As already stated, these questions are vital issues in suit No. 628 of 1926 and will be decided when that case is re-opened after the decree in that suit is declared to be a nullity in the present case.
8. The result is that this appeal is allowed. The order of remand, passed by the lower appellate Court is set aside and the decree of the Court of first instance is upheld, with the consequence that suit No. 628 of 1926 will be re-opened and disposed of according to law. The plaintiffs will have their costs throughout. Leave to appeal under the Letters Patent is refused.