Judgement Appeal from a decree of the High Court (Aug. 15, 1899) reversing a decree of the Third Subordinate Judge of Patna (Dec. 24, 1896). The question decided in this case was whether an execution sale, carried out under the circumstances mentioned in their Lordships judgment, was inoperative, as regards the plaintiffs share in the property sold, for want of proper service of summons and other processes upon their properly constituted guardian, the sale having taken place during their minority. The First Court held as regards the proceedings in the suit in which execution was issued that Moti Rani Koer, the mother of the minors, was a fit person to be guardian for the minors in that suit, and that she was practically appointed as such, "although no formal order appointing "her" was drawn up." Also that the minors were not prejudiced by the widows silence "since there was no defence open to the widow." And as Doorga Dutt, their uncle, did not actually take out the certificate of guardianship (under the order of November 26, 1881, appointing him) until July 29, 1882, while the sale followed on Law. Rep. 30 Ind. App. 182 ( 1902- 1903) Mussammat Bibi Walian V. Banke Behari Pershad Singh 84 August 14, 1882, "Zahurul Huck could not therefore have made Doorga Dutt guardian on behalf of the minors." As regards the service of summons, &c, which, so far as these came to the hands of any person, were admittedly handed " to Gajadhur in the Court compound," the learned Subordinate Judge held this good service on Moti Rani Koer, believing that Gajadhur was then joint with the minors and their mother, and disbelieving the evidence of the plaintiffs, which was adduced to shew that Gajadhur had previously separated from them and did not then live with them. He accordingly dismissed the suit. The High Court, on the other hand, gave the plaintiffs a decree for their share. They held that the minors were not sufficiently represented in the former suit; that it was necessary for the Court, having regard to the provisions of s. 443 of the Civil Procedure Code, to see that a proper guardian had been appointed. The High Court, on the other hand, gave the plaintiffs a decree for their share. They held that the minors were not sufficiently represented in the former suit; that it was necessary for the Court, having regard to the provisions of s. 443 of the Civil Procedure Code, to see that a proper guardian had been appointed. The Subordinate Judge on these proceedings had not directed his attention to the minority of the plaintiffs or the appointment of a proper guardian, and there was nothing to lead to the presumption that the Court had expressly or impliedly sanctioned the appointment of the mother as their guardian. They also came to the conclusion that there had been no attempt to prove service of the various processes on the minors or even on their mother; the peon had not gone beyond the precincts of the Court, the service being made on plaintiffs eldest brother, Gajadhur Pershad ; that although he is described in the deposition as the guardian of the minors, he was not so for the purposes of the suit. Sir W. Rattigan, K.C., and C. W. Arathoon for the appellants, contended that the First Court was right in holding that the Court had sanctioned the appointment of the mother as guardian, and that the minors were effectively represented and their interests protected. No doubt the appointment of a guardian under s. 443 of the Civil Procedure Code was imperative, but substantially that article was complied with, and whatever irregularities (if any) there may have been, the minors were not prejudiced thereby, nor were they deprived of effective protection see s. 578, and Hari Saran Moitra v. Bhubaneswari Debi (( 1888) L. R. 15 Ind. Ap. 195.) ; Kedar Prosunno Lahiri v. Protap Chander (( 1891) Ind. L. R. 20 Calc. 11.); Vasudev Morbhat Kale v. Krishnaji (( 1895) Ind. L. R. 20 Bomb. 534,536); Jatindra Mohan Poddar v. Srinath Roy. (( 1898) Ind. L. R. 26 Calc. 267, 272.) As to service of summons, see s. 75 of the Civil Procedure Code. The minors had no defence to the former suit, and have no cause of action in this suit see Doorgapershad v. Keshopersad Singh. (( 1882) L. R. 9 Ind. Ap. 27.) They can get no relief until they pay the claims on the property see Bhura Mai v. Harkishan Das. (( 1902) Ind. L. R. 24 Allah. The minors had no defence to the former suit, and have no cause of action in this suit see Doorgapershad v. Keshopersad Singh. (( 1882) L. R. 9 Ind. Ap. 27.) They can get no relief until they pay the claims on the property see Bhura Mai v. Harkishan Das. (( 1902) Ind. L. R. 24 Allah. 383.) Then as regards limitation, the suit was to set aside a sale. Art. 12 of Act XV. of 1877 gives no power from date of confirmation of sale. Sect. 8 was also referred to and Surja Kumar Dutt v. Arun Chunder Roy (( 1901) Ind. L. R. 28 Calc. 465, 469.) thereon. Phillips, for the respondents, contended that the sale was inoperative as regards their shares for want of proper service of summons and other processes on a properly constituted guardian of the minors. Sect 578 of the Civil Procedure Code only refers to irregularities, not to any error going to the root of the suit. The minors were not in reality parties to the suit, and that is an objection which goes to its foundation see Hari Saran Moitra v. Bhubaneswari Debi (( 1888) L. R. 15 Ind. Ap. 195.) and Bhura Mal v. Harkishan Das. (Ind. L. R. 24 Allah. 383.) Then as to service of summons, the onus was on the other side to shew a proper service in the former suit see Ganga Prosad Chowdhry v. Umbica Churn Coondoo. (( 1887) Ind. L. R. 14 Calc. 754.) The appellants were not heard in reply. The judgment of their Lordships was delivered by Law. Rep. 30 Ind. App. 182 ( 1902- 1903) Mussammat Bibi Walian V. Banke Behari Pershad Singh 85 SIR ARTHUR WILSON. Tiluckdhari Singh on August 28, 1873, executed a mortgage bond in favour of Chowdhry Sheik Wahid Ali to secure a sum of money borrowed from the latter, with interest. In 1881 Zahurul Huck, the son of Wahid Ali, brought a suit to recover the money due under the mortgage bond, and, Tiluckdhari being then dead, he made defendants Gajadhur, the adult son of Tiluckdhari by one marriage, and Moti Rani Koer, as mother and guardian of four minor sons by another marriage. In 1881 Zahurul Huck, the son of Wahid Ali, brought a suit to recover the money due under the mortgage bond, and, Tiluckdhari being then dead, he made defendants Gajadhur, the adult son of Tiluckdhari by one marriage, and Moti Rani Koer, as mother and guardian of four minor sons by another marriage. On October 29, 1881, the plaintiff in that suit obtained an ex parte decree in his favour, under which the mortgaged property was put up for sale and ultimately purchased by the decree-holder, who was put into possession by the Court on January 8, 1883. The present suit was brought in the Court of the Third Subordinate Judge of Patna, the plaint having been ultimately filed on January 5, 1895. The plaintiffs are the younger three of the sons of Tiluckdhari, described as minors in the former suit. The substantial defendants are the representatives of the plaintiff in that suit; the fourth and fifth defendants are Gajadhur, the half-brother of the plaintiffs, who was the adult defendant, and Sidheswar, the elder uterine brother of the plaintiffs, who was one of the minor defendants in the former suit. Of these two it is said in the plaint that, as they are acting in concert with the other dfendants, they are made pro forma defendants. The material allegations in the plaint were to the following effect That Tiluckdhari borrowed the money raised under the mortgage bond of August 28, 1873, for immoral purposes, so that his sons were not answerable for the debt; that the former suit, that to enforce the bond, was fraudulently brought and carried through by the then plaintiff in collusion with the plaintiffs half-brother Gajadhur, the adult defendant in that suit and the fourth defendant in this suit, and that the pro ceedings in execution and the sale were equally fraudulent. It was further alleged that no summons or other process was served in the suit or execution proceedings upon the present plaintiffs, and that no guardian in the suit was duly appointed for them. It was further alleged that no summons or other process was served in the suit or execution proceedings upon the present plaintiffs, and that no guardian in the suit was duly appointed for them. On these grounds it was prayed, amongst other things, that it might be held that the auction sale, so far as the plaintiffs share was concerned, was held in an illegal way, and that Zahurul Huck and the defendants as his heirs acquired no right to the property in dispute; that the auction sale and the decree might be declared inoperative against the plaintiffs; and that the latter might be put in possession of the share claimed by them. The substantial defendants in their written statements denied all the allegations of the plaint. On these pleadings issues were raised, of which it is only necessary to notice the fifth, sixth, seventh, and eighth. The fifth asked, amongst other things, whether the money under the original bond was raised for illegal and immoral purposes. The sixth was whether the sale was liable to be set aside and the plaintiffs restored to possession. The seventh was whether the plaintiffs were properly represented in the suit and execution proceed ings, and, if not, whether they were void on that ground. The eighth was whether the suit and proceedings in execution were tainted by fraud as alleged, and, if so, whether they were void on that ground. It is clear, therefore, that the substantial case of the plaintiffs was a case of fraud; the seventh issue, however, raised a question of a totally different kind, whether the suit and execution were void by reason of defects in procedure. At the trial before the Subordinate Judge the plaintiffs main case failed altogether. The Court found that Tiluckdharis bond was not given for immoral or illegal purposes, so that the debt was binding upon his sons, and that there was no fraud. And those findings have not been impeached. Law. Rep. 30 Ind. App. 182 ( 1902- 1903) Mussammat Bibi Walian V. Banke Behari Pershad Singh 86 As to the case based upon defects of procedure in the former suit, the Subordinate Judge held, first, that the then minor defendants (including the present plaintiffs) were parties defendant to the suit; and the High Court accepted this view, in which their Lordships entirely concur. App. 182 ( 1902- 1903) Mussammat Bibi Walian V. Banke Behari Pershad Singh 86 As to the case based upon defects of procedure in the former suit, the Subordinate Judge held, first, that the then minor defendants (including the present plaintiffs) were parties defendant to the suit; and the High Court accepted this view, in which their Lordships entirely concur. The alleged defects which remain are, first, that the present plaintiffs were not properly represented in that suit; that they were not properly served with summons in the suit; and that they were not properly served in the execution proceedings. As to the first of these points, the mother of the present plaintiffs appears throughout the proceedings in the former suit as their guardian. It is impossible at this distance of time to ascertain positively whether an order appointing her guardian ad litem was ever drawn up; but the Subordinate Judge in the present case assumed that there had been none, and he was probably right. An examination, however, of such proceedings in that suit as are forthcoming shews that the Court admitted the plaint in which the mother was described as guardian; that in its decree it so described her; and that similar language was used in the execution proceedings. In this connection it is necessary to notice that on November 26, 1881, Durga Dutt, the uncle of the present plaintiffs, obtained an order for a certificate of guardianship to them, but the certificate was not taken out till July 29, 1882, long after the decree and the order for sale in execution, and a few days before the actual sale. As to the alleged defect of service of summons in the former suit, the decree in that suit recites that " by the evidence of the peon who served the summons, and that of the identifier, the service on them "—the defendants in that suit, including the plaintiffs in this—" is proved." The evidence of the peon is not available by reason of the lapse of time, but a deposition of the identifier is in evidence " I did not go with the Courts peon to the residence. I identified Gajadhur Singh here in this Court .. . . He took all the summonses and duplicates of the plaint addressed to the defendants, and granted a receipt on behalf of all the four by his own pen. I identified Gajadhur Singh here in this Court .. . . He took all the summonses and duplicates of the plaint addressed to the defendants, and granted a receipt on behalf of all the four by his own pen. Gajadhur was the guardian of all the three defendants, and he is agent as well." The Subordinate Judge has found that Gajadhur was at that time joint with his minor half-brothers, and there is evidence that he acted as karta of the family, as he naturally would under the circumstances. The Subordinate Judge held that, though no formal order appointing the mother to be guardian ad litem of the infants had been drawn up, the Court must be deemed to have sanctioned the appointment, and that the want of a formal order was at most an irregularity, which could not invalidate the proceedings in the absence of proof of prejudice having accrued to the present plaintiffs, while as to the certificate to Durga Dutt, he held that the date of its issue made it immaterial. As to the service of summons in the suit, and of processes in the execution proceedings, the Subordinate Judge arrived at a similar conclusion, and he dismissed the suit. On appeal to the High Court, that Court conceded that the suit was substantially against the minors; but with reference to the representation of the minors, it was said " It is necessary that the Court should see that a proper guardian be appointed to protect their interests. Sect. 443 of the Code of Civil Procedure is imperative upon this point; the Court, after satisfying itself of the fact of minority, is bound to appoint a proper person to act on behalf of the minor in the conduct of the ease." 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. But it is quite another thing to say that a defect in following those rules is necessarily fatal to the proceedings. But it is quite another thing to say that a defect in following those rules is necessarily fatal to the proceedings. The High Court, however, considered that there was nothing from which they could presume, as the Lower Court had done, that the Court in the mortgage suit had sanctioned, expressly or impliedly, the appointment of the minors mother as their guardian ad litem; and the learned judges thought the defect Law. Rep. 30 Ind. App. 182 ( 1902- 1903) Mussammat Bibi Walian V. Banke Behari Pershad Singh 87 was emphasised in the execution proceedings by the fact of Durga Dutt having obtained the certificate already referred to. They also considered that there had been no sufficient service of summons in the former suit. On these grounds they reversed the decision of the First Court] and made a decree in the plaintiffs favour. Against that decree the present appeal has been brought. Their Lordships are unable to concur in the conclusion at which the learned judges arrived. The present plaintiffs were substantially sued in the former suit, and the alleged fraud has been negatived. It appears to their Lordships that they were effectively represented in that suit by their mother and with the sanction of the Court; and for the reasons given by the First Court their Lordships attach no importance to the certificate of Durga Dutt. There is nothing to suggest that their interests were not duly protected. The only defects which can be pointed out are that no formal order appointing the mother of the now plaintiffs to be their guardian ad litem is shewn to have been drawn up; and that it is not definitely shewn that any attempt was made to serve the summons in the former suit upon the infants personally, or upon their mother, a purdah-nashin lady, before serving it upon Gajadhur, the only adult male member and the karta of the family. It has not been shewn that the alleged irregularities caused any prejudice to the present plaintiffs; nor indeed could there well be any, since it has been found that the original debt was one for which the present plaintiffs were liable. It has not been shewn that the alleged irregularities caused any prejudice to the present plaintiffs; nor indeed could there well be any, since it has been found that the original debt was one for which the present plaintiffs were liable. Their Lordships are of opinion that the defects of procedure alleged in this case are at most irregularities which, under s. 578 of the Civil Procedure Code, would not have furnished ground for reversing the proceedings in the former suit, if they had been raised upon appeal in that suit. This is in accordance with the ruling of a Full Bench of the Calcutta High Court in Suresh Chunder Wum Chowdhry v. Jugut Chunder Deb (( 1886) Ind. L. R. 14 Calc. 204.), approved by this Board in Hari Saran Moitra v. Bhubaneswari Debi (L. R. 15 Ind. Ap. 195, at p. 200.), and with the decision in the last-mentioned case. And the plaintiffs who have brought a separate suit to set aside the judgment and execution proceedings in the former suit and the title acquired under them can certainly not be in a better position than if they had been appellants in that suit. Their Lordships will humbly advise His Majesty that the decree of the High Court should be set aside with costs, and the decree of the Subordinate Judge restored. The respondents will pay the costs of this appeal.