JUDGMENT : Stanley, J.:— The plaintiff-appellant, Hangman Parshad, in the suit out of which this appeal has arisen, sued for a declaration that a certain house was his property and was not saleable and did not pass under a sale which took place on the 18th of February, 1900. One Munna Das, who was the certificated guardian of the appellant, on the 18th of June, 1891, purported to mortgage the house in question as his own property in favour of two persons, Ajudhia and Munna Lal. The mortgagees brought a suit for enforcement of payment of the mortgage-debt by sale of the mortgaged property and obtained a decree for sale on the 18th of September, 1897, and the property was sold on the 18th of February, 1900, to the defendant-respondent, Muhammad Ishaq. In the suit which was instituted by the mortgagees the sole defendant originally was the mortgagor, Munna Das. Munna Das, however, made an application to the Court on behalf of his nephew, the plaintiff-appellant, Hanoman Pershad, to have the plaintiff-appellant impleaded as a defendant to the suit, alleging that the house did not belong to him. (Munna Das), but was the property of his nephew. That application was signed by Munna Das, as certificated guardian of the plaintiff-appellant. The Court acceded to this application and directed that Hanoman Pershad, the plaintiff-appellant, should be made a party defendant to the suit and directed him to file a written statement. No application whatever was made under the provisions of section 443 of the Code of Civil Procedure for the appointment of a guardian ad litem for Hanoman Pershad who was a minor. The suit proceeded in the absence of a guardian ad litem and the sale of the property was ultimately carried out. Munna Das put in a written statement professing to act as guardian of his nephew and filed an appeal against the decree which was passed in the suit, but allowed the appeal to be dismissed for default. 2. Now the provisions of section 443 are imperative. They direct that where a defendant is a minor the Court shall appoint a proper person to be guardian for the suit for such minor to put in a defence and generally to act on his behalf in the conduct of the case. 2. Now the provisions of section 443 are imperative. They direct that where a defendant is a minor the Court shall appoint a proper person to be guardian for the suit for such minor to put in a defence and generally to act on his behalf in the conduct of the case. It is abundantly clear in this case that Munna Das was not a proper person whom the Court, if it had been made aware of the facts, would have appointed as guardian. In the first place he was the mortgagor who purported to mortgage as his own, the property which he afterwards alleged was the property of his ward. He, therefore, had a conflicting interest—an interest which should have precluded any Court from appointing him as guardian ad litem in a suit brought by the mortgagees of Munna Das. 3. It is perfectly clear that the Court had not the facts before it; and it also appears to us to be clear that the Court was never called upon by the plaintiff, whose duty it was to see that a proper person was appointed guardian ad litem to appoint such guardian. The fact is that Hanoman Pershad was not properly represented as a party to that suit, and therefore any decree which was passed against him, was a mere nullity. It is said that an innocent purchaser at an auction sale should not suffer under the circumstances, but we may point out that it may be open to him under the provisions of section 315 of the Code of Civil Procedure to recover the purchase money from any person to whom it has been paid if it turn out, upon an issue which it will be necessary for us to remit to the lower appellate Court, that the plaintiff-appellant is the true owner of the house in question. The question has not been decided by the lower appellate Court. 4. It has been strongly contended on behalf of the defendant-respondent that the decision of their Lordships of the Privy Council in the case of Walian v. Banke Bihari Pershad Singh : [1903] I.L.R., 30 Cal., 1021, entitles him to the judgment of the Court. In that case minors were sued and their mother apparently was appointed as their guardian ad litem, but there was no evidence that any formal order to that effect was drawn up. In that case minors were sued and their mother apparently was appointed as their guardian ad litem, but there was no evidence that any formal order to that effect was drawn up. Their Lordships in that case held that there being nothing to suggest that the interests of the minors were not duly protected, and the defects in procedure not having prejudiced the minors, the absence of a formal order appointing the mother guardian ad litem was a mere irregularity under section 578 of the Code of Civil Procedure and not an error, fatal to the suit. Their Lordships in their judgment say (at page 1031 of the report) as follows: — “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 lor 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 plaintiffs to be their guardian ad litem is shown to have been drawn up; and that it is not definitely shown that any attempt was made to serve the summons in the former suit upon the infants personally or upon their mother, a purdahnashin lady, before serving it upon Gajadhar, the only adult male member and the karta of the family. It has not been shown 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 is clear from this language that what their Lordships held was that where orders were passed appointing a guardian ad litem but such orders were not drawn up, the omission to draw up formal orders was a mere irregularity; and that it appearing that there had been effective representation of the minors in the suit by their mother and there being nothing to suggest that their interests were not protected and in view of the fact that they were liable for the debt sued for, the irregularity would not be fatal to the sale. Now, in the case before us, we find that the debt in respect of which the suit was brought, was a debt of the uncle, and of the uncle alone. We find that the uncle did not effectively defend the interest of the plaintiff-appellant, but, on the contrary, acted dishonestly and improperly in bringing in his nephew in to a suit with which he had originally no concern whatever, and entirely neglected his duty towards his nephew, ‘and allowed a decree by default to be passed. We may further point out in answer to the contention that has been strenuously urged by Mr. Baldev Ram on behalf of the respondent in regard to the non-observance of the imperative provisions of section 443 of the Code, that there is a recent pronouncement of their Lordships of the Privy Council on the subject in the case of Khairamal v. Daim : [1904] L.R., 23 I.A., 23; S.C. 2 A.L.J.R., 71. Lord DAVEY in delivering the judgment of their Lordships considered the effect of a decree obtained against a party who was not properly represented in a suit. The question in that case was as to the validity, of sales had under decrees. His Lordship observed:— ”Their Lordships agree that the sales cannot be treated as void or now be void on the grounds of any mere irregularities of procedure in obtaining the decree, or in the execution of them. But, on the other hand, the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record, As against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside.” We think under the circumstances that the lower appellate Court was wrong in disturbing the finding of the Court of first instance upon the’ question which has been discussed before us. The learned Munsif found that “the decree under which the house was eventually sold and purchased by the defendant No. 2 is also not binding on the plaintiff, seeing that he was not properly made a party to it, as found by the appellate Court in its judgment of the 12th of April 1902.” 5. We fully agree with the learned Munsif as regards this matter. We fully agree with the learned Munsif as regards this matter. We distinctly find that the plaintiff was not properly represented in the mortgage suit, and therefore he was no party to it; and he is not bound by the decree passed therein; the lower appellate Court, however, has not decided the title to the house in question. The defendant-respondent contends that it was the property of Munna Das at the date of the mortgage executed by him on the 18th of June, 1891. The plaintiff-appellant, on the other hand maintains that the house throughout belonged to him and this has been repeatedly acknowledged by Munna Das. However we must have a distinct finding upon this question, We, therefore, under the provisions of section 566 of the Code of Civil Procedure remit to the lower appellate Court the following issue for determination:— Did the house mentioned in the pleadings belong to Munna Das or to the plaintiff-appellant, Hanoman Pershad, on the 18th of June, 1891, the date of the mortgage by Munna Das to Ajudhia and Muni Lal? 6. This issue will be determined upon the evidence already before the Court. On return of the finding the parties will have the usual ten days for filing objections.