JUDGMENT 1. This is a second appeal by the plaintiff from the concurrent judgments of the lower Courts dismissing his suit for the setting aside of the ex-parte decree in the earlier suit No. 332 of 1950 against his father and subsequently after his death, against the legal representatives including himself. The grounds averred are that the plaintiff was not noticed as a minor, there was no order appointing a guardian, and the mother-natural guardian has also not been noticed. In spite of the destruction of the nonpermanent papers of the file of the old suit, the broad facts are ascertainable and are mostly common ground. The real questions are firstly, whether in the circumstances of the case the irregularities in regard to the notices and representation of the minor legal representative and the appointment of the guardian, are cured by the fact that somebody (apparently at the instance of his major brother) did at some stage represent him. Secondly, whether the second suit itself is maintainable because an application of this plaintiff (through the natural guardian) under Order 9, Rule 13 had been dismissed. 2. The facts of the case are the following: suit No. 332 of 1950 had been filed against the appellant's father Gopalrao who died after putting in the written statement. It is obviously unnecessary to set out in detail the pleadings on either side except to not that the stake was considerable and further. Gopalrao did actually make quits a number of averments in defence. After his death, the plaintiff sought to bring on record his legal representative, namely, widow Yamunabai, the major son Ramchandrarao and the younger son plaintiff here-who at that time was a minor. There was the usual notice for showing cause against substitution. But anyway the substitution was made. Gopalrao did actually make quits a number of averments in defence. After his death, the plaintiff sought to bring on record his legal representative, namely, widow Yamunabai, the major son Ramchandrarao and the younger son plaintiff here-who at that time was a minor. There was the usual notice for showing cause against substitution. But anyway the substitution was made. There was no notice on the minor as such, and the notice the mother as a legal representative was not actually served on her but was accepted by Ramchandrarao the adult son; as a ground of attack on the ex-parte decree this is of no avail and can be dismissed with tare mention even here because, for one thing, the notice on the widow of Gopalrao should be deemed to have been properly served as an adult male member living in the house with her was quite competent to receive it; and for another it does appear, further, that she was represented after substitution. But there was no order appointing a guardian to the minor under Order 32, Rule 3 (ii), nor was there any notice to the mother as the natural guardian as required by Order 32 Rule 3 (iv) Civil Procedure Code. 3. Later on, on several does a lawyer appeared for the defendants. The nonpermanent papers having been destroyed probably by over right as the record room had not been informed of the suit for selling aside the decree, it is rot possible to verify from the Vakalatnama itself who had given the power. Still, the notes on the order sheet are before us; they show that all the three had the same lawyer the third, that is, the minor being represented not by the natural guardian-mother but by the elder brother Ramchandrarao. This last has to be derived from the notice which went to the brother Ramchandrarao as the guardian and not the mother. After appearance on several dates during which nothing particular was done the lawyer for all the three defendants dropped out. Agam, the case was not adjourned, for a few mere days on which none of the defendants, nor any lawyer on their behalf appeared. Ultimately, the plaintiff, witnesses were examined and the suit decreed exparte against all the defendants. After appearance on several dates during which nothing particular was done the lawyer for all the three defendants dropped out. Agam, the case was not adjourned, for a few mere days on which none of the defendants, nor any lawyer on their behalf appeared. Ultimately, the plaintiff, witnesses were examined and the suit decreed exparte against all the defendants. Shortly after till the present plaintiff who was sill a minor, filed an application under Order 9, rule 13 now through his mother as his guardian for the bring aside of the exparte decree. This was dismissed. After this, he filed the present suit on the grounds already mentioned. 4. Both the lower Courts have taken the view firstly, that the defects in the notices and the representation of the minor were cured by the fact that there was appearance on behalf of the minor and representation by lawyer after the substitution; at later stages there was no representation but that is no legal defect. The fact is that this came under the principle the Privy Council laid down in Valian Vs. Banke Behari pershad Singh, (ILR 30 Cal. 1021), holding that the defects notwithstanding, the exparte decree could not be set aside. Secondly, the Courts found that as a fact, the minor was a party to the suit. If he was, the appropriate course for him was to go up under Order 9 rule 13 and not bring a separate suit. Actually, he did so and only when that application was dismissed, did he bring the present suit which in these circumstances was not maintainable. 5. From these decisions, the plaintiff has come up in second appeal urging that the ruling in Valian Vs. Banke Behri pershad Singh (ILR 30 Cal. 1021) (supra) has no application to the present case and the defect; have not been cured. Further, there was really no proper representation and the minor was not a party to the suit in the eyes of law. If he was nor obviously, there is no bar to the present suit notwithstanding the gratuitous application under Order 9, rule 13. 6. The law regarding the representation of minor is contained in Order 32 Civil Procedure Code, and regarding the instant suit, in rule 3. If he was nor obviously, there is no bar to the present suit notwithstanding the gratuitous application under Order 9, rule 13. 6. The law regarding the representation of minor is contained in Order 32 Civil Procedure Code, and regarding the instant suit, in rule 3. It is an established principle that the Courts Should be particularly jealous in regard to the interests of minors; statute itself has provided several safeguards in this regard. There should be a clear express appointment of a guardian with no adverse interest to the minors. Before such an appointment is made, the minor himself should be noticed and also the natural guardian, if any. In the instant case, there was no express appointment, nor was the natural guardian noticed in this regard. However, on the strength of a general notice, the brother Ramchandrarao seems to have given a Vakalatnama on behalf of the minor also. The same person seems to have briefed the lawyer on his mother's behalf; but neither suo motu, nor on the Court's invitation, did shtake any interest on behalf of the minor till after the ex-parte decree was passed. It may be that the brother, who without express appointment or the notice to the natural guardian took upon himself the duties of guardianship, discharged his functions with due diligence and gave up consisting the suit honestly convinced that it would be futile; but it is at least, equally likely that he was indifferent to the interest of his brother, and that in the event of the Court having applied its mind to this matter, the minor's interests would have been better safeguarded. It may even be that on an appropriate notice, the natural guardian would have shown interest or the Court itself finding the natural guardian not sufficiently diligent on behalf of the minor, made some other arrangement. In certain circumstance, an ex-parte decree automatically follows when on sufficient opportunity being given the defendant does not care to appear and present his defence. But when one of the defendants is a minor, the Court should do well to consider at that stage whether it would be fair and equitable to saddle the minor also with the ex-parte decree without making sure that there is a properly appointed guardian and further, he has been acting with due diligence. But when one of the defendants is a minor, the Court should do well to consider at that stage whether it would be fair and equitable to saddle the minor also with the ex-parte decree without making sure that there is a properly appointed guardian and further, he has been acting with due diligence. This touches the entire decree which is one and indivisible as between the defendants in the original suit. 7. These defects have not been denied but on the analogy of Valian Vs. Banke Behari Parshad Singh (ILR 30 Cal. 1021) (supra) it is urged that there having been representation the minor has suffered no prejudice and the decree should not be set aside. But the instant case differs materially. There the mother of the minor defendants appeared throughout the proceedings as their guardian having in fact been described in the plaint as such, and accepted as such by the Court from the very beginning. In other words, the person who did represent the minors was the one who would have been formally appointed and had all the requirements of law being literally complied with. In effect, there was a tacit appointment of the proper person as guardian. Here, on the other hand, the person who did represent the minor on certain dates was neither the appointed guardian, there in fact being no appointment, nor the natured guardian in that capacity, but a brother who could not even have been appointed without noticing the natural guardian and recording reasons why she could not have been appointed. In the Privy Council case, the absence of a formal order made no difference to the person who actually functioned as guardian. In the instant case, it has made all the difference. A less important difference is that in that case the natural guardian functioned all through the litigation; here however, the guardian who did appear, dropped out, and nobody appeared for the minor at the later and the more crucial stage. Had there been a proper appointment, with all the notices necessary, this would be immaterial. But there having been no notice and no appointment the very fact of the representation on behalf of the minor ending at one stage of the litigation shows that the principle of effective representation can not be applied; because the representation such as it was not effective. 8. But there having been no notice and no appointment the very fact of the representation on behalf of the minor ending at one stage of the litigation shows that the principle of effective representation can not be applied; because the representation such as it was not effective. 8. In the case reported in Nathu Mander Vs. Suraj Narain Jha, AIR 1948 Patna 415, it was relied- "If the interest of the minor was effectively represented in the execution proceedings, a mere defect in the appointment of the guardian does not suffice to invalidate the sale in the absence of proof that the minors were prejudiced." There as in the instant case the Courts did not follow the procedure for the appointment of the guardian; but as a fact it was found that the uncle of the minors represented them as their guardian and in the opinion of the Court effectively represented them. It seems a so to be a case where there was no father or mother to be noticed before somebody else was appointed. This principle beyond question; but it has no application to the present case. 9. The defendant-respondent No. 1, that is the plaintiff-decree holder in the original suit, has cited a number of rulings where the appointment of the guardian was irregular, but the Courts held all the same that the minor having been actually represented, cannot in a subsequent suit get the decree set aside. This class of cases is not analogous to the present one in which there has been no appointment as such by the Court. It is still urged on behalf of the respondent that the principle is that any irregularity in regard to the appointment would not affect the decree if the guardian has actually represented the minor in Chhattar Singh Vs. Tej Singh, AIR 1921 All. 393, two guardians were noticed in respect of two batches of the minors and as they remained silent, they were appointed formally, being already parties to the suit as defendants and also members of the same family; their interest was identical with that of the minors and the defence put up by them was in effect the defence of the minors as well. The Court accordingly held that consent of the guardians under Order 32 rule 4 (iii) was implied from the conduct though there was no express consent by them: “Whatever the irregularity in this regard, the moment it is shown that there has been no fraud and the minor's interests have not been prejudiced their right to set aside the proceedings must be denied.” 10. In Radha Gopal Vs. Lakshmi Narayan, AIR 1923 Patna 385, the minor himself had nut been noticed and further on the proposal of the plaintiff, the brother of the minor defendant was appointed guardian though the mother was alive and had neither been proposed by the plaintiff nor noticed by the Court. It was held that having been appointed, the brother guardian, who was undoubtedly the Karta of the joint family actually represented the minor in all joint family transactions including the defence in the suit. Similarly, in Bhersinghbhaoo Vs. Tularam Bhaoo, AIR 1935 Nagpur 32, he Court appointed as guardian for the minor a person other than the one who had already been certified as the guardian by the Court of Wards. The guardian appointed by the civil Court in the litigation actually performed his duties. It was therefore held: "When the Court does not know that a certificated guardian has been appointed and the plaintiff in the suit proposes another person as the guardian and on his refusal of service the Court appoints the Court-reader as the guardian of the minor acting bona fide, there is a procedural irregularity and not an illegality and he decree passed against the minor cannot be said to be void. 11. As against this, the appellant has pointed out that these cases have no application here. In them then was an appointment by the Court and the guardian so appointed did actually perform. In the appointment itself, there was some irregularity but no fraud. At all events, it was round that the minor did not suffer any prejudice in those cases. In the instant case, there has been no appointment properly so called of any guardian by the Court. Somebody did ostensibly perform the duties of the guardian for same time and dropped out for no ascertainable reason; therefore it cannot be held that then has been no prejudice. In the instant case, there has been no appointment properly so called of any guardian by the Court. Somebody did ostensibly perform the duties of the guardian for same time and dropped out for no ascertainable reason; therefore it cannot be held that then has been no prejudice. It cannot certainly be urged that the minor had such a strong case that in the event of the guardian whether appointed or acting on his own responsibility, taking interest the decree would not have been passed. But there was at least a sporting chance and the "guardian" having let matters go by default, did prejudice the interests of the minor. Thus, we are dealing here not with an appointment actually made by the Court, but with somebody performing the duties of the guardian for sometime without any appointment and then letting things go by default. 12. The respondent has also referred to the ruling reported in Gharib-ul-lah Vs. Khalak Singh, 30 Indian Appeals 165 and Bishundeo Narain Vs. Seogeni Bai, AIR 1951 S.C. 280 . In the earlier case, the natural guardian of the miner signed a mortgae, deed on his behalf without the sanction of a Court as was required by a statute in force at that time. It was held that this was no ground on which the mortgage could be declared invalid. In the latter case, a compromise entered into without Court's sanction under order 32 rule 7 was held to be not void in itself but merely voidable at the option of the minor. It is difficult to say what bearing they have on the present controversy. 13. The case reported in Sankar Patra Vs. Debidayal Singh, AIR 1952 Orissa 111 is some what similar to the instant one. In that case, a notice on the minor was served through the Karta of the joint family who was other then the natural guardian and the Court held it to be a serious defect. 14. In all such cases, the real problem is, whether, firstly, the requirements of law have been contravened. In that case, a notice on the minor was served through the Karta of the joint family who was other then the natural guardian and the Court held it to be a serious defect. 14. In all such cases, the real problem is, whether, firstly, the requirements of law have been contravened. The moment they are contravened, it would be for the party interested in maintaining the decree to show that the contravention notwithstanding, there has been representation that is effective in two respects; firstly, that the person who did represent the minor is the one that the Court itself would have or should have appointed in the circumstances; and, secondly, he represented the minor, at all the relevant stages of the litigation. If the person, who is properly appointed, fails to represent the minor, then the question would be not of the representation proper, but of good faith and diligence; but when there is no representation in terms of statute, it is to be effective, in fact, in both the senses. That was the position in the case before the Privy Council and not the position in the case before us. For these reasons, I would hold that the minor's interests have not been safeguarded either in term, of Order 32 rule 3 or in the manner found in the Privy Council and the Patna cases. 15. The second question can be disposed of briefly. The established principle is that the defendant in the litigation against whom an ex-parte decree is passed cannot on the ground of notice alone file a fresh suit but should apply under Order 9 rule 13. That seems to have been the attitude of the present plaintiff himself when with his mother as his guardian he went to the Court with an application under Order 9 rule 13. But it is not the choice of the party but a point of law whether or not he was really a party to the litigation. For reasons already set out, not having been properly represented, the minor was not a party to the suit No. 332 of 1950. If he was not a party, his application under Order 9 rule 13 was just gratuitous, and he is entitled to bring a fresh suit on the ground of non-representation. In Paramanand Vs. For reasons already set out, not having been properly represented, the minor was not a party to the suit No. 332 of 1950. If he was not a party, his application under Order 9 rule 13 was just gratuitous, and he is entitled to bring a fresh suit on the ground of non-representation. In Paramanand Vs. Lakhmichand, AIR 1922 Nagpur 249 (2)=10 MPLC 42=18 NLR 138, it was laid down that a minor defendant who is not represented in the suit by a properly appointed guardian is not a party and the proceedings in the suit cannot bind him. Therefore no application such a minor under Order 9, rule 13 lies. While noticing this judgment the first appellate Court has observed that an earlier Nagpur decision has not been considered there. It is difficult to see what difference it makes. In fact, this Nagpur view is in agreement with the view of most of the High Courts and is further on the face of it reasonable and fair. As it is clear that this minor was not properly represented Order 9, rule 13 does not debar him from bringing this suit. 16. In the result, the suit of the plaintiff-appellant is decreed and the ex-parte decree in Civil suit No. 332 of 1950 is set aside. This would revive the suit at the stage at which the substitution was effected. The plaintiff in that suit (defendant No. 1 here) shall pay the costs of the ex-minor plaintiff in this suit in all the three Courts with pleaders fee according to rules.