JUDGMENT B. Mukerji, J. - This appeal has come up before me after almost three years: I heard it in part on the 19-3-57. The delay has been occasioned because of a mistake committed by learned Counsel for the Appellants in not having a guardian on the record for the Respondent who was shown as a minor in the array of parties in the Memorandum of Appeal. 2. The appeal was filed on 28-1-54, by Lakshman Karan and Govind Karan against Bansidhar, minor son of Lakshmi Prasad. Bansidhar was shown as minor but there was no guardian to act for Bansidhar minor. The office report on the Memorandum of Appeal did not show that there was any defect in the array of parties, inasmuch as no guardian had been nominated or appointed to act on behalf of the minor Respondent Bansidhar. On 14-3-57 counsel for the Appellants made an application which he purported to make under the provisions of Section 151, Code of Criminal Procedure. This application was put up before the Court on 18-3-57. The prayer in this application was slightly curiously worded for the prayer was in these words: It is therefore most respectfully prayed that this Hon'ble Court be pleased to order that the word 'minor' in the array of the Respondent in the memo of appeal be deleted and he may be treated as major or grant such other and further relief as this Hon'ble Court deems proper. 3. I have chosen to call the prayer curious because I do not quite understand what was intended to be meant by "minor in the array of the Respondent", but now it appears that the description of Bansidhar as a minor in the Memorandum of Appeal was to be deleted. This application was accompanied by an affidavit filed by one Ganga Prasad who in paragraph 3 of the affidavit stated that he had been informed by one Girdhari Lal Saraf and some other persons that Bansidhar Respondent was about 20 years old at the time when he swore the affidavit. 4. Subsequently, the Applicants filed another application, which was dated 20-3-57 but which actually was put in Court on 21-3-57, u/s 151 and Order XXXII, Rule 3, 4 and II of the Code. 4. Subsequently, the Applicants filed another application, which was dated 20-3-57 but which actually was put in Court on 21-3-57, u/s 151 and Order XXXII, Rule 3, 4 and II of the Code. By this application it was prayed that the guardianship of Achey Lal be terminated because Achey Lal had died some three years back and some Advocate of this Court be appointed guardian of Bansidhar Respondent. It was also prayed that in case the Court found that the Respondent had become major then the appeal be proceeded with by declaring Respondent Bansidhar major. In the affidavit accompanying this application which was sworn by Lakshmi Sahai it was stated in paragraph 6 that the Respondent was about 16 years' old at the time when the appeal against him had been filed. 5. Notice on both the aforementioned applications was issued and on behalf of the Respondent objection was taken to either declaring Bansidhar as a major or appointing a guardin of Bansidhar. One of the contentions raised on behalf of the Respondent was that at the time when the appeal had been filed the appeal was incompetent because in the array of parties to the appeal there was no guardian shown for Bansidhar who had been shown as a minor. The contention put forward on behalf of the Respondent was that no guardian could be appointed for Bansidhar for the period of limitation for filing the appeal had expired, particularly when in this case there was a guardian who had been appointed for Bansidhar by Court. 6. The question that therefore arises for determination is whether the appeal when filed, that is to say, on 5-2-54 (when it was put before the Court), was a properly filed appeal having all the necessary parties to the appeal before the Court. As I have already said, the appeal was filed against Bansidhar and Bansidhar had been described as a minor but there was no guardian of Bansidhar on the record. Under the law it was not obligatory on a party to disclose the name of a guardian in the Memorandum of Appeal. Order XXXII, Rule 3, which applied mutatis mutandis to appeals, says: (1) Where the Defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. Order XXXII, Rule 3, which applied mutatis mutandis to appeals, says: (1) Where the Defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. (2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of minor or by the Plaintiff. ... ... ... 7. Under Rule 4(2) where a minor has a guardian appointed or declared by competent authority then no person other than such guardian is competent to act as the next friend of the minor or be appointed his guardian for the suit unless the Court for reasons to be recorded considers it proper to appoint some one else. It is settled law that a decree obtained against a minor without there being a guardian for him cannot bind the minor; it is a nullity. But there is no authority for the proposition that an appeal filed against a minor without a proper guardian is an incompetent appeal, or a suit filed against a minor without showing a guardian for the minor is an incompetent suit. 8. A similar question came up for decision as far back as 1907 in this Court in the case of Rup Chand v. Dasodha and Anr. Case AIR 30 All. 55 when Sir John Stanley, C.J. and Sir William Darkitt, J. held that where a guardian ad litem of a Defendant Respondent was not made a party to an appeal filed by the Plaintiff until after the period of limitation for filing such appeal had expired, the appeal was not for that reason to be deemed as time barred. In Rup Chand's Case AIR 30 All. 55 their Lordships pointed out that a guardian ad litem is not a party to a suit or an appeal. 9. Similar view was taken in Ali Yagin v. Bhagwan Das and Ors. Case AIR 1947 All. 357 by a Bench of this Court in 1947 in which it was held that a suit instituted against a minor for whom no guardian is appointed is not a nullity though a decree passed against him, when no guardian ad litem had been appointed, will be a nullity. 10. In Rai Satyadeva Narayan Sinha and Ors. v. Tribeni Prasad and Ors. AIR 1936 Pat. 10. In Rai Satyadeva Narayan Sinha and Ors. v. Tribeni Prasad and Ors. AIR 1936 Pat. 157 it was pointed out that the appointment of guardian is not a necessary preliminary to the filing of an appeal although it is necessary before an appeal can be properly heard and disposed of. It was further held that if the appeal was otherwise properly filed then the mere fact that no guardian had been shown for the minor did not make the appeal incompetent. 11. Mr. V.K.S. Choudhry, on behalf of the Respondent relied on the observation of their Lordships of the Privy Council in the case of Khairajmal v. Daim AIR 32 Cal. 296. The observation on which reliance was placed by Mr. Chaudhry is to be found at page 312, second paragraph, where their Lordships said this: 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. 12. This sentence, in my judgment, does not help Mr. Chaudhry in any way, for nobody has contended in this case that the execution appeal could have proceeded against Bansidhar and an order made in that appeal which could bind Bansidhar without there having been on the record a guardian who could look after the interests of Bansidhar if he continued to be a minor at the date when the appeal came up for hearing. 13. For the reasons given above I am clearly of the opinion that Appeal No. 233 of 1954 cannot be treated as time barred or as having been wrongly accepted by the office. 14. I have already referred to the two applications which were made on behalf of the Appellants. Unfortunately the position has undergone a good deal of change since the appeal was filed. Further I see some inconsistency between the prayer contained in the application dated 14-3-57, namely the first application and the prayer contained in the application which was dated 20-3-57 and registered in this Court on 21-3-57. The affidavit which have been filed in support of these two applications do not, in my opinion, disclose accurately all the facts which need be disclosed for the purpose of making proper orders in regard to the position of Bansidhar in the appeal. The affidavit which have been filed in support of these two applications do not, in my opinion, disclose accurately all the facts which need be disclosed for the purpose of making proper orders in regard to the position of Bansidhar in the appeal. The responsibility for this state of affairs must lie on the Appellants and they should in fairness bear all the costs which have been incurred by the Respondent up to this date in connection with the two more or less abortive applications. I assess the costs at Rs. 51/- which the Appellants will pay to counsel for the Respondent within two weeks from today. Further the Appellants will within the same period of two weeks file a proper application supported by a proper affidavit disclosing all the necessary facts. Mr. J.N. Agarwala, for the Appellants, will serve a copy of the application and the affidavit on Mr. Chaudhry, who will thereafter have another week for filing any counter-affidavit that he may like. Mr. Agarwala will have another week after that for filing a rejoinder affidavit if he so desires. This case will come up again for orders after the lapse of four weeks.