S. B. MAJMUDAR, J. ( 1 ) THE petitioner who is original respondent No. 1 in the main first appeal and who was original defendant No. 1 in special civil suit No. 37 of 1971 in the court of the learned Civil Judge (Senior Division) Rajkot has requested this court by way of the present application to decide as a preliminary point the question regarding the maintainability of the first appeal. Earlier a Division Bench of this court had directed on 28-2-1982 that this application be heard along with the main appeal. But subsequently a later Division Bench of this court directed that this application be taken up for consideration earlier and the learned advocates of both the sides are agreed to this position and that is how this application reached final hearing before us yesterday. ( 2 ) IN order to appreciate the grievance of the petitioner centering round the maintainability of the first appeal it will be necessary to quickly glance through a few relevant facts leading to the present litigation between the parties. Opponent No. 1 is the original plaintiff on whose behalf special civil suit No. 37 of 1971 was filed in the court of the learned Civil Judge (Senior Division) at Rajkot by his guardian and next friend his adoptive mother Bai Santok as admittedly opponent No. 1 was a minor at the time when the suit was filed. The said suit was filed against the present petitioner who was defendant No. 1 as well as against opponent No. 2 who is since deceased against Opponent No. 3 who is since deceased and who is represented by her heirs opponents Nos. 3/1 to 3/4 opponent No. 4 as well as opponent No. 5 who were defendants Nos. 3 to 5 respectively. Opponent No. 1 had filed the suit through his guardian and adoptive mother for getting partition of property of joint Hindu family allegedly consisting of himself and defendant No. 1 and others and to get his one half share separated and to get accounts of the property and his share of the income and mesne profits on the various allegations contained in the plaint. At this stage we are not concerned with the merits of the controversy. Hence we do not dilate on the same any further. The aforesaid suit was filed on 25-6-1970 in forma pauperis. At this stage we are not concerned with the merits of the controversy. Hence we do not dilate on the same any further. The aforesaid suit was filed on 25-6-1970 in forma pauperis. An application for permission to sue in forma pauperis was moved being civil miscellaneous application No. 269 of 1970 before the trial court which ultimately came to be allowed on 26-4-1971 and opponent No. 1s mother Bai Santok as guardian and next friend of minor plaintiff was permitted to file the suit in forma pauperis and the suit was registered as special civil suit No. 37 of 1971 on 26-4-1971. It appears that during the pendency of the suit opponent No. 1 married on 21-5-1975. That prompted the present petitioner defendant No. 1 as well as original defendants Nos. 2 and 3 to file application ex. 154 on 23-7-1975 requesting the trial court to issue notice under Order 32 Rule 12 C. P. Code to opponent No. 1 who according to the petitioner and other contesting defendants had become major as he had married during the pendency of the suit. The said application was replied to by ex. 155 on 14-8-1975 by opponent No. 1s guardian and next friend Bai Santok. She stated that the plaintiff was still a minor and hence the application filed by the petitioner and other defendants was not maintainable. In view of the aforesaid stand taken by opponent No. 1s guardian and next friend the petitioners learned Advocate in the trial court Mr. D. L. Kothari made an endorsement below ex. 154 that the said application was not pressed. The said endorsement was made on 3 It appears that thereafter the learned trial Judge decided the suit on merits on 26-4-1976 and dismissed the suit of opponent No. 1 with cost and also directed opponent No. 1s guardian and next friend Bai Santok to pay courtfees which would have been paid if the plaintiff was not permitted to sue as a pauper according to Order 32 Rule 11 C. P. Code. ( 3 ) BEING aggrieved by the aforesaid decree of dismissal of the suit an appeal was filed before this court under sec. 96 of the C. P. Code on 9-9-1976. The said appeal was sought to be filed as a pauper under Order 44 Rule 1. ( 3 ) BEING aggrieved by the aforesaid decree of dismissal of the suit an appeal was filed before this court under sec. 96 of the C. P. Code on 9-9-1976. The said appeal was sought to be filed as a pauper under Order 44 Rule 1. C. P. Code praying therein that opponent No. 1s guardian and next friend might be permitted to file this appeal in pauperism. The said miscellaneous civil application came to be registered as miscellaneous civil application No. 64 of 1976 in this court. As the said application was filed beyond 30 days of the date of the decree of the trial court opponent No. 1s guardian and next friend filed civil application No. 2191 of 1976 before this court praying for condonation of delay of 9 days in filing the appeal in paupersim. Notice was issued in the said application for condonation on delay the other side and that is how the present petitioner appeared before this court through his learned Advocate and contested the said application. He filed his objections on 10-2-1977. In the meantime respondent No. 3-Bai Mani who was original defendant No. 3 in the trial court expired and her heirs were permitted to be brought on record by civil application No. 1896 of 1978 filed by opponent No. 1s guardian and next friend in delay condonation application No. 2191 of 1976. The said application No. 189/6 of 1978 was granted by this court on 7-9-1978. The heirs of original defendant No. 3 Bai Mani who were brought on the record of the proceedings in this court also filed their objections to the delay condonation application after they were joined as parties to the present proceedings in this court. Thereafter this court after hearing the concerned parties condoned the delay in filing the first appeal on behalf of opponent No. 1 who was still at that time prosecuting the proceeding in this court as a minor through his guardian and next friend Bai Santok. The delay condonation application No. 2191 of 1976 came to be granted on 1-2-1978. It is thereafter that opponent No. 1 filed another civil application No. 356 of 1978 in the first appeal which was at that time bearing stamp No. 12233 of 1976. The said application was filed under the provisions of Order 32 Rule 12 by opponent No. 1 on 27-1-1978. It is thereafter that opponent No. 1 filed another civil application No. 356 of 1978 in the first appeal which was at that time bearing stamp No. 12233 of 1976. The said application was filed under the provisions of Order 32 Rule 12 by opponent No. 1 on 27-1-1978. At that time opponent No. 1 submitted to this court that he had already become major on 27-12-1975 and hence the title in the appeal may be allowed to be amended and that opponent No. 1 may be permitted to prosecute the appeal as a major appellant. A Division Bench of this court granted the said application on 22-2-1978. It appears that at the stage when the said application for correcting the record was made and at the time when it came to be granted the opponents were not ordered to be served with the notice of the said civil application and the order passed by the Division Bench of this court on 22-2-1978 in civil application No. 356 of 1978 appears to be an ex-parte order. However the said circumstance does not have any pernicious effect on the present respondents in the appeal including the present petitioner for the simple reason that it is the petitioners own case accepting the stand taken by opponent No. 1 in the civil application No. 356 of 1978 that opponent No. 1 has become major on 27-12-1975 and it is on this basis that the present application is moved by the petitioner for getting reliefs as prayed for therein. Therefore it has to be taken as an accepted fact between the parties that opponent No. 1 became major on 27-12-1975 and that he requested this court to permit him to prosecute this appeal as a major by his application No. 356 of 1978 and that the court granted him permission to prosecute the appeal as a major appellant on 22-2-1978 and the record of the appeal stood corrected accordingly. ( 4 ) WE may now note a few relevant events which occurred after February 1978. On 26-7-1978 this court granted opponent No. 1 leave to appeal in forma pauperis and admitted his appeal to final hearing. ( 4 ) WE may now note a few relevant events which occurred after February 1978. On 26-7-1978 this court granted opponent No. 1 leave to appeal in forma pauperis and admitted his appeal to final hearing. That order was passed on 26-7-1978 by a Division Bench of this court in miscellaneous civil application No. 64 of 1978 which originally was filed as civil miscellaneous application in 1976 precisely on 9-9-1976 as noted earlier and which had remained pending in this court for about two years on account of the intervening events which we have mentioned earlier viz. the proceedings becoming unready on account of the death of Maniben respondent No. 3 as well as due to the fact that the proceedings had to be kept pending awaiting decision of this court on the delay condonation application. We may note at this stage that in miscellaneous civil application No. 64 of 1978 which was an application for granting leave to opponent No. 1 to prefer appeal as an indigent person earlier this court had issued Rule on 22-2-1978 and notice was ordered to be issued to the Government Pleader and it is thereafter that on 26-7-1978 the application was granted. Opponent No. 1 was permitted to prefer the appeal in pauperism and his appeal was admitted to final hearing. Thus the appeal bearing stamp No. 12233 of 1976 as originally filed in this court was registered as first appeal No. 650 of 1978 pursuant to the aforesaid order of this court in civil miscellaneous application No. 64 of 1978. As rule was issued in the said application to all the opponents it is easy to presume that all the necessary parties had notice of the said proceedings and it is after giving them an opportunity of hearing that the said application came to be granted by the court. Two more facts need be stated in the chronology of events before we conclude the narration of the events leading to the present application. On 18-1-1982 the present petitioner filed miscellaneous civil application No. 19 of 1982 requesting this court to dispauper opponent No. 1 on the ground that he had sufficient means to pay the courtfees. Two more facts need be stated in the chronology of events before we conclude the narration of the events leading to the present application. On 18-1-1982 the present petitioner filed miscellaneous civil application No. 19 of 1982 requesting this court to dispauper opponent No. 1 on the ground that he had sufficient means to pay the courtfees. Before that application could proceed on merits opponent No. 1 filed a statement in this court on 8-2-1982 expressing his willingness to pay up the requisite court-fees and accordingly he paid the requisite court fees on the memo of appeal. As a result thereof the petitioners application for dispaupering opponent No. 1 did not survive. It is in these circumstances that the present petitioner has moved this application requesting this court to decide as a preliminary point the contention of the petitioner that the main first appeal is not maintainable and that it deserves to be dismissed. It is requested by the petitioner that the earlier order of this court condoning delay in filing the main first appeal as passed in civil application No. 2191 of 1976 be recalled and set aside. That the order passed by this court permitting opponent No. 1s mother guardian and next friend to join heirs of respondent No 3 Bai Mani by way of civil application No. 1896 of 1977 also be recalled and set aside. That the amendment granted by the court in the cause title of memo of appeal in civil application No. 356 of 1978 also may be recalled and set aside and the order admitting the appeal may also be revoked. ( 5 ) THE main thrust of the arguments in support of the present application as canvassed by the learned Advocate General on behalf of the petitioner centres round the provisions of Order 32 Rule 12 C. P. Code. It would be necessary to note the arguments canvassed by the learned Advocate General in support of the present application at this stage. It was contended that as stated by opponent No. 1 himself in his application No. 356 of 1978 moved earlier by him in these proceedings opponent No. 1 had become major on 27-12-1975. That event happened prior to the decree of the trial court. It was contended that as stated by opponent No. 1 himself in his application No. 356 of 1978 moved earlier by him in these proceedings opponent No. 1 had become major on 27-12-1975. That event happened prior to the decree of the trial court. Placing reliance on Order 32 Rule 12 it was contended by the learned Advocate General that on the date on which opponent No. 1 who was minor plaintiff attained majority the proceedings in the suit were not over in the trial court and consequently he was required to strictly comply with the provisions of Order 32 Rule 12 by exercising his option to continue the suit in his personal capacity or to opt out of it. As the said procedure was not followed the decree which ultimately resulted in his suit on 26-4-1976 was a nullity. ( 6 ) IT was next contended that moment opponent No. 1 minor plaintiff become major on 27-12-1975 his guardian and next friend became functus officio and thereafter she could not act as guardian of the minor who was no longer a minor and consequently she could not have filed the present appeal as guardian of minor on 9-9-1976 in this court. That all steps which she took subsequently in this court from 9 onwards by way of filing applications for bringing on record heirs of original opponent No. 3 Bai Mani and by filing application for condonation of delay in preferring appeal in forma pauperis were all null and void and hence the present appeal deserves to be dismissed as not maintainable. It was alternatively contended that in any case clock must be put back and the decree of the trial court should be set aside on this preliminary ground and the case may be remanded to the trial court proceeding further in accordance with law after complying with the provisions of Order 32 Rule 12. ( 7 ) IT is on the basis of the aforesaid contentions that various reliefs as prayed for in this application are sought to be obtained. ( 8 ) THE present application is hotly contested by opponent No. 1 who has appeared through his learned Advocate Mr. J. R. Nanavati. It is contended on behalf of opponent No. 1 that it is true that opponent No. 1 had become major during the pendency of the suit in the trial court on 27-12-1975. ( 8 ) THE present application is hotly contested by opponent No. 1 who has appeared through his learned Advocate Mr. J. R. Nanavati. It is contended on behalf of opponent No. 1 that it is true that opponent No. 1 had become major during the pendency of the suit in the trial court on 27-12-1975. But before that all the relevant evidence which was required to be led by the respective parties was led in the trial court and after 27-12-1975 no fresh evidence was led by any party and the only effective step which was taken by the trial court after 27-12-1975 was to hear arguments of the respective advocates of the contesting parties and thereafter judgment was delivered on 26-4-1976 and that too against opponent No. 1 plaintiff who at that time had become major. Mr. Nanavati contended that merely because opponent No. 1 who had become major after 27-12-1975 did not apply to the trial court under Order 32 Rule 12 to get description of his name corrected and shown in his personal capacity and for deleting the name of his guardian adlitem and next friend the contesting defendants including the petitioner were not prejudiced at all and at the highest it was an irregularity and as the ultimate decree of the trial court was against opponent No. 1 it was for him to challenge the decree on this additional ground of noncompliance with the procedure of Order 32 Rule 12. But opponent No. 1 was not feeling aggrieved by the said irregularity in the procedure and he was not inclined to challenge the decree of the trial court on that technical ground. Consequently it is not open to the defendants including the petitioner to make capital out of the aforesaid procedural irregularity and in any case noncompliance with the provisions of Order 32 Rule 12 had no fatal effect on the decree of the trial court. The decree was not rendered a nullity only on that account as tried to be contended by the learned Advocate General for the petitioner. Mr. The decree was not rendered a nullity only on that account as tried to be contended by the learned Advocate General for the petitioner. Mr. Nanavati next contended that Order 1 Rule 10 C. P. Code as well as section 99 of the said Code are complete answer to the technical contention raised by the learned Advocate General on behalf of the petitioner regarding alleged effects of noncompliance with Order 32 Rule 12 during the pendency of the proceedings in the trial court. Mr. Nanavati next contended that during the pendency of this appeal in this court procedure of Order 32 Rule 12 has been followed though belatedly by opponent No. 1 and his application No. 356 of 1976 has been granted by a Division bench of this court. The result is that the record of the appeal is duly amended and now opponent No. 1 is prosecuting this appeal in his individual capacity. Consequently it cannot be said that the appeal which is being prosecuted by opponent No. 1 in his individual capacity has become incompetent on account of any technical law. Mr. Nanavati next contended that before opponent No. 1 gave the said application No. 356 of 1978 in this court for correcting the record in appeal by showing him as major whatever steps his mother took as his guardian and next friend cannot be said to be totally unauthorised and void. She was duly authorised to prosecute the suit in the trial court as guardian adlitem and next friend of opponent No. 1 and her authority to act in the interest of opponent No. 1 did not automatically come to an end moment opponent No. 1 became major on 27-12-1975. He therefore contended that the earlier orders passed by this court after hearing the present petitioner as well as other contesting opponents in delay condonation application in preferring the appeal when this court granted civil application No. 2191 of 1976 as well as the order passed by this court admitting the appeal cannot be said to be null and void and the appeal deserves to be decided on merits after repelling the hyper technical contentions raised by the petitioner in the present application. ( 9 ) IT is in the context of the aforesaid rival contentions canvassed by the learned Advocates of the respective parties that we proceed now to resolve the short controversy which has been posed for our consideration at this stage. As we have noted earlier the entire controversy centres round the provisions of Order 32 Rule 12 C. P. Code which read as under :"12. (1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall on attaining majority elect whether he will proceed with the suit or application. (2) Where he elects to proceed with suit or application he shall apply for an order discharging the next friend and for leave to proceed in his own name. (3) The title of the suit or application shall in such case be corrected so as to read henceforth thus : A. B. late a minor by C. D. his next friend but now having attained majority. (4) Where he elects to abandon the suit or application he shall if a sole plaintiff or sole applicant apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party of which may have been paid by his next friend. (5) Any application under this rule may be made ex parte but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend. "a mere glance at the said provision shows that it is a procedural provision which lays down that a minor plaintiff or a minor not a party to a suit on whose behalf an application is filed in the trial court has on attaining majority to elect whether he would like to proceed with the suit or application or not. The said provision is required to be read in the light of the provision of Order 32 Rule I which lays down that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. A reference to Order 32 Rule 2 also becomes useful at this stage. A reference to Order 32 Rule 2 also becomes useful at this stage. It provides :" (1) Where a suit is instituted by or on behalf of a minor without a next friend the defendant may apply to have the plaint taken off the file with costs to be paid by the pleader or other person by whom it was presented. Under sub-rule (2) of rule 2 it has provided: (2)Notice of such application shall be given to such person and the court after hearing his objections (if any) may make such order in the matter as it thinks fit. ". THE aforesaid procedural provision shows how the suit by or against a minor can be proceeded with in the court of the first instance. It is not in dispute between the parties that opponent No. 1 was admittedly a minor on the date on which the suit was filed in the trial court firstly by way of miscellaneous application for leave to sue in forma pauperis i. e. on 25-6-1970 as well as on the date on which the said application was granted by the trial court and the suit was ordered to be registered as special civil suit No. 37 of 1971 i. e. on 26-4-1971. It is in these circumstances that the scope and ambit of the play of Order 32 Rule 12 is required to be considered in the present case. The said procedural provision calls upon the concerned minor plaintiff to opt out on attaining majority during the pendency of the suit and to decide whether he would like to proceed with the suit or application. If he decides to proceed with the suit he has to apply for an order discharging the next friend. On the other hand if he elects to abandon it he may apply to get his suit dismissed. In the present case it is not the contention of the petitioner that opponent No. 1 had ever applied to the trial court to dismiss the suit on the ground that he wanted to abandonit. Thus there was no possibility of applicability of Order 32 Rule 12 (4) in the present case. The only event which happened was that opponent No. 1 on attaining majority did not exercise his option one way or the other and remained silent. Thus there was no possibility of applicability of Order 32 Rule 12 (4) in the present case. The only event which happened was that opponent No. 1 on attaining majority did not exercise his option one way or the other and remained silent. The question is whether mere silence on the part of the plaintiff who had then become major a mere inaction on his part in putting forward his election qua the proceedings in the trial Court as laid down by Order 32 Rule 12 can have any pernicious effect on the ultimate decree which was passed by the trial court treating opponent No. 1 to be still a minor. Before we proceed to deal with various authorities to which our attention was invited by both the sides in support of their respective contentions we may note a few relevant facts which emerge from the Rojnama of the suit which indicated the progress of the suit from time to time in the trial court till opponent No. 1 plaintiff who was admittedly a minor initially attained his majority on 27-12-1975. Special civil suit No. 37 of 1971 was registered on 26-4-1971. Thereafter the suit registered as special civil suit remained on the file of the trial court for couple of years from 1971 onwards till 1975. During all this period Opponent No. 1 plaintiff was admittedly a minor plaintiff who was prosecuting the suit through his guardian and next friend Bai Santok. The said action on behalf of opponent No. 1 was perfectly justified and in consonance with the procedural provision of Order 32 Rule 1. Issues were framed in the said suit on 7-8-1971. Thereafter evidence was led by the respective parties both oral as well as documentary. In the process years rolled by and the suit remained pending on the file of the trial court. Last witness for the contesting defendants viz. witness No. 12 K. J. Kakkad was examined at ex. 166 on 26-9-1975 before the trial court. Even on that day opponent No. 1 plaintiff was admittedly a minor and was duly and properly represented by his guardian. Thereafter on 16-10-1975 a purshis ex. 168 was filed by the learned Advocate for the contesting defendants closing the evidence. Thereafter arguments of the plaintiffs Advocate Mr. Oza were heard by the learned trial Judge and the case was fixed on 21-10-1975 for hearing arguments of Mr. Thereafter on 16-10-1975 a purshis ex. 168 was filed by the learned Advocate for the contesting defendants closing the evidence. Thereafter arguments of the plaintiffs Advocate Mr. Oza were heard by the learned trial Judge and the case was fixed on 21-10-1975 for hearing arguments of Mr. Oza and that of Mr. Kothari and Mr. Shah who were the learned Advocates for the contesting defendants in the trial court. The Rojnama entries of these relevant dates clearly bring out this factual position. It is only on 21-10-1975 which was the next date of hearing in the trial court when further arguments of the respective learned Advocates were to be heard that an application was moved by the petitioners Advocates Mr. Kothari being ex. 169 requesting the trial court to grant him permission to amend his written statement. It appears that the said application came to be granted by learned trial Judge after hearing the concerned parties and in the light of the amended written statement further issues were added but on these issues neither side chose to lead any evidence and even the plaintiff opponent No. 1 on whose behalf right of rebuttal evidence was sought to be reserved did not choose to lead such rebuttal evidence. Thus the fact remains that inspite of amendment of the written statement and inspite of additional issues which were framed pursuant thereto no fresh evidence was led by either side and the learned Advocates of respective parties decided to address the learned trial Judge on the evidence on record as it was led prior to 16-10-1975. As noted earlier in the meantime opponent No. 1 attained majority. But no application seems to have been moved by him before the learned trial Judge exercising his option under Order 32 Rule 12. The learned trial Judge heard the arguments of the learned Advocates on the basis of the evidence on record and ultimately by his judgment the decree dated 26 dismissed the suit of the plaintiff with cost. It is in background of the aforesaid events that occurred during the pendency of the suit in the trial court that the grievance voiced on behalf of the petitioner by his learned Advocate Mr. J. M. Thakore has to be appreciated. It is in background of the aforesaid events that occurred during the pendency of the suit in the trial court that the grievance voiced on behalf of the petitioner by his learned Advocate Mr. J. M. Thakore has to be appreciated. On a mere reading of Order 32 Rule 12 it is not possible to agree with the broad submission canvassed on behalf of the petitioner by the learned Advocate General that moment a minor plaintiff who attained majority pending the proceedings in a suit fails to elect one way or the other whether to proceed with the suit or to abandon the suit subsequent proceedings before the trial court become unauthorised and the decree that follows either dismissing the suit or decreeing the suit would ipso facto become a void decree. No such fatal effect can be culled out from the noncompliance of the procedural provision of Order 32 Rule 12 as tried to be suggested by the learned Advocate General for the petitioner. In fact an option is given to the minor plaintiff to elect either to proceed with the suit in his individual capacity or to abandon the suit. But if he does not exercise his election by mere inction on his part no inference can be drawn that he had decided to abandon the suit and had opted for dismissal of the suit as laid down by Order 32 Rule 12 (4 ). The said rule enacts a procedural provision giving an option to the minor plaintiff and it nowhere lays down any penalty for the plaintiff imposing any fatal consequence if election is not exercised one way or the other by the minor Oza attaining majority pending the suit. The said provision of O. 32 R. 12 has also to be read in the light of sec. 99 of the Code which lays down as under:"no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any misjoinder or non joinder of parties or cause of action or any error defect or irregularity in any proceedings in the suit not affecting the merits of the case of the jurisdiction of the court. Provided that nothing in this section shall apply to non joinder of a necessary party. Provided that nothing in this section shall apply to non joinder of a necessary party. "it is obvious that merely because the minor plaintiff having become major does not exercise his option under O. 32 R. 12 one way or the other during the pendency of the suit it cannot be said that thereby any irregularity defect or error of the type which affects the merits of the case or jurisdiction of the court gets projected in the proceedings. At the highest it remains a procedural irregularity which will have no fatal effect on the decree that follows and such a decree cannot be reversed only on that ground by the appellate court as enjoined by the legislature by enacting sec. 99. Therefore on the express language of Order 32 Rule 12 read with sec. 99 the main submission canvassed by the learned Advocate General has got to be repelled. ( 10 ) WE may now turn to various authorities on which strong reliance was placed by the learned Advocate General in support of his contentions. ( 11 ) OUR attention was invited to a decision of the Bombay High Court in RATANCHAND V. JASRAJ A. I. R. 1940 BOM. 58. The question before the Division Bench of the Bombay High Court was as to whether next friend of the minor plaintiff would remain liable to pay cost to the defendants if during the pendency of the suit the minor plaintiff had become major and had exercised his option under Order 32 Rule 12 to get out of the suit and to get it dismissed. In that case the suit was instituted in 1938 on behalf of the minor plaintiff by his next friend and father-in-law one Jasraj Kasturchand. On the day on which the suit was filed the minor plaintiff was aged 17 years. The partition of the joint family properties was prayed for in the said suit on behalf of the minor by his father-in-law acting as his next friend. During the pendency of the suit costs were incurred by the parties on account of certain applications filed in the suit. The partition of the joint family properties was prayed for in the said suit on behalf of the minor by his father-in-law acting as his next friend. During the pendency of the suit costs were incurred by the parties on account of certain applications filed in the suit. On 18-1-1939 the minor plaintiff attained his majority and on 26-1-1939 he took out a summons asking for an order that the suit filed in his name by the next friend be directed to be dismissed and the next friend be ordered to pay the costs of all parties of and incidental to the suit. The contention of the next friend was that he had been instructed in all materials by the minor plaintiff himself and that the suit was a perfectly proper suit. Thus the short controversy before the court in the said case was as to whether the next friend and guardian of the plaintiff could be saddled with the cost of the litigation if ultimately the plaintiff attained majority and decided to opt out of the suit and to get it dismissed. The trial court dismissed the suit and ordered that the minor plaintiff should pay costs of the next friend as well as the costs of the contesting defendants. The contesting defendants carried the matter in appeal and contended that they were entitled to order for payment of costs against the next friend irrespective of any misconduct on his part. The appeal as filed by the contesting defendants come to be dismissed by the Division Bench of the Bombay High Court. While dismissing the appeal Beaumont C. J speaking for the Division Bench observed as fallows:"so long as the plaintiff is a minor there must be a next friend shown on the record who is answerable for costs: but as soon as the minor attains his majority the next friend is functus officio and prima facie his liability ceases. The former miner plaintiff is bound under 0. 32 R 12 to elect whether he will proceed with the suit or not. The former miner plaintiff is bound under 0. 32 R 12 to elect whether he will proceed with the suit or not. If he elects to proceed with the suit the title to the record is altered by showing him a major plaintiff and he thereupon becomes liable for the costs as from the commencement of the suit and the defendant is therefore placed in exactly the same position as he would have been in if the plaintiff had never been a minor. If the minor elects not to proceed with the suit he can only do so on submitting to an order to pay the costs of the defendant and also the costs of the next friend. There also the defendant is placed exactly in the same position. as he would have been in if the plaintiff had never been a minor. It is only in a case of a misconduct by the next friend which falls within R. 14 that any order for payment of costs can be made against the next friend after the minor has attained his majory. "it is difficult to appreciate as to how the aforesaid decision can advance the case of the petitioner in the present case. The short controversy with which the Division Bench in the aforesaid case was concerned was pertaining to the liability of the next friend to pay costs of the suit after the minor plaintiff on attaining majority decided to opt against the suit. It is true that the observations are made in the said case to the effect that once the plaintiff becomes major the guardian and next friend becomes functus officio. But these observations are made in the context of the question whether the next friend can be made liable to pay costs of the proceedings to the plaintiff as well as to the contesting defendants after the plaintiff becomes major. Nowhere has the Division bench considered the effect of noncompliance with the provision of Order 32 Rule 12 by the minor plaintiff who becomes major on the ultimate decree which may come to be passed in the suit. That question never arose for consideration and consequently it was not required to be considered and was not considered by the Division Bench in the Ratanchands case (supra ). That question never arose for consideration and consequently it was not required to be considered and was not considered by the Division Bench in the Ratanchands case (supra ). Hence the ratio of the decision in the aforesaid case being totally inapplicable to the facts of the present case cannot be of any assistance to the petitioner. ( 12 ) OUR attention was then invited to a passage from Halsburys Laws of England 4 Edition Vol. 24 para 895. 11. The said para reads as under :" When an infant who is sole plaintiff or applicant in legal proceedings attains full age while they are pending he may elect whether the proceedings are to continue or not. If he elects to continue the proceedings they will then be conducted in his own name and he will be liable for the costs of them from the commencement. If he elects to discontinue them he may obtain an order to dismiss then on payment of the costs from the commencement or he may take no steps in which case the defendant may apply to dismiss the proceedings but cannot make the infant pay the costs of them. WHEN an infant is co-plaintiff or co-petitioner with others he may on attaining full age apply to have his name struck out but in that case if his co-plaintiff or co-petitioners so desire he may be added as a defendant or respondent to the proceedings. He may not on attaining full age claim to appear as a plaintiff separately from his co-plaintiff. "the last part of the aforesaid para says that in case the minor plain. tiff on attaining majority takes no steps exercising his option one way or the other to continue or to discontinue the defendant may apply to dismiss the proceedings but the defendants cannot make the infant plaintiff pay the costs of the proceedings. It may be noted at tht this stage that such a contingency has not arisen in the instant case. The contesting defendants did not apply to get the proceedings dismissed on the ground that the minor plaintiff had not taken any steps under 0. 32 R. 12 one way or the other. The learned Advocate General for the petitioner submitted in this connection that the defendants had in vain applied earlier before the trial court for calling upon the minor plaintiff to exercise his option under 0. 32 R. 12 one way or the other. The learned Advocate General for the petitioner submitted in this connection that the defendants had in vain applied earlier before the trial court for calling upon the minor plaintiff to exercise his option under 0. 32 R. 12 on the assumption that he had become major. But it was found out that even though the plaintiff had married he was still a minor. Consequently the defendants had not pressed their application ex. 155 and consequently the defendants never knew as to when the opponent No. 1 became major. Thus they got no opportunity in the suit to request the learned trial judge to dismiss the proceedings. That is neither here nor there. The fact remains that during the proceedings in the trial court after opponent No. 1 became major on 27-12-1975 no such application was given by the petitioner or other contesting defendants requesting the learned trial judge to dismiss the suit as the plaintiff had not exercised his option one way or the other under 0. 32 R. 12. Even otherwise the aforesaid observation found in para 895. 11 in Halsburys Laws of England cannot automatically be made applicable to the proceedings governed under the Code of Civil Procedure as sec. 99 of the Code contra indicates the legislative intention to the effect that even if such a procedure had not been followed by the minor plaintiff that would not by itself visit him with a fatal consequence and the appellate court cannot reverse the decree only on that ground Our attention was not invited to any such parallel provision in the English procedural law and consequently the aforesaid observations in para 895. 11 in Halsburys Laws of England cannot advance the case of the petitioner. ( 13 ) WE were then referred to a decision of the Calcutta High Court in DRUPAD CHANDRA V. BINDUMOYI DASI A. I. R. 1926 CALCUTTA 1053. A Division Bench of the Calcutta High Court in the aforesaid case was concerned with the question whether a minor defendant represented by guardian ad-litem is under a duty to discharge his guardian ad-litem on attaining majority. On the facts of the aforesaid case one Jatindra who was minor was a party to the suit which culminated into an appellate decree against him. By the time the said decree came to be passed he had already become major. On the facts of the aforesaid case one Jatindra who was minor was a party to the suit which culminated into an appellate decree against him. By the time the said decree came to be passed he had already become major. Still he continued to be represented through his guardian ad-litem. The said Jatindra tried to avoid the appellate decree subsequently by contending that the plaintiff of that suit knew that he had already become major and still he had not applied to the court to discharge the guardian ad-litem of minor Jatindra who had become major. Consequently the decree passed by the appellate court against him treating him to be minor though in fact he was major was null and void. This contention canvassed on behalf of Jatindra was repelled by the Division Bench of the Calcutta High Court speaking through Greaves J. and it was held :"a duty lay on Jatindra when he attained majority to discharge his guardia ad-litem and appear himself. Despite the fact that the plaintiff was his grand mother who presumably knew when he attained majority we do not think that the obligation was on her to discharge the guardian who properly represented the infant during his minority. We think therefore that it is not possible to say that Jatindra was not bound by the decree. "to say the least the a aforesaid decision of the Calcutta High Court instead of supporting the case of the petitioner really goes against him. The Division Bench of the Calcutta High Court has in terms held that even though a minor party has become major if he still continues to be represented for any reason his erstwhile guardian an order passed by the court against him in such proceedings does not become invalid. It is true that the aforesaid Calcutta case was not concerned with the case of a minor plaintiff who becomes major pending the suit. But on principle it would make no difference whether minor plaintiff on attaining majority continues to remain represented by his erstwhile guardian or whether minor defendant on attaining majority continues to remain represented by his erstwhile guardian so far as net effect of such a sitution on the ultimate decision of the court goes. But on principle it would make no difference whether minor plaintiff on attaining majority continues to remain represented by his erstwhile guardian or whether minor defendant on attaining majority continues to remain represented by his erstwhile guardian so far as net effect of such a sitution on the ultimate decision of the court goes. The decision rendered by a court in either case cannot be rendered null and void for the simple reason that these are all procedural provisions whose noncompliance does not have any fatal effect on the efficacy of the decision of the court arrived at after hearing the concerned parties. ( 14 ) OUR attention was then invited by the learned Advocate General to a decision of Orissa High Court in GADHADHAR PANDA V. GANGADHAR A. I. R. 1972 ORISSA 24 In the aforesaid decision R. N. Misra J. had to consider the question whether a minor plaintiff who had challenged the provious partition through his guardian and next friend on permissible grounds under Hindu law could be permitted to convert the suit into one by a major plaintiff and could challenge the partition on all other permissible grounds available to a major plaintiff because he had attained majority during the pendency of the suit. In the said case minor plaintiff had sought to challenge the partition brought about by his father during the minority on the plaintiff. The learned trial Judge held that the suit was not maintainable as the right of the minor coparcener to dispute partition effected by his father was personal and cannot be exercised during his minority by his guardian and it is on this ground that the trial court held the suit not maintainable. R. N. Misra J. in the aforesaid decision agreed with the view taken by the learned trial Judge and held that the plaintiff was rightly nonsuited as his suit was not maintainable during his minority as per the provision of Mitakshara law. It is at that state that an alternative contention was canvassed on behalf of the plaintiffs advocate before the Orissa High Court viz. that the plaintiff had then become major and he desired to challenge the partition on the grounds indicated in the plaint in his own capacity as major and therefore the question of maintainability of the suit did not remain important. that the plaintiff had then become major and he desired to challenge the partition on the grounds indicated in the plaint in his own capacity as major and therefore the question of maintainability of the suit did not remain important. The said alternative contention was rejected by the Orissa High Court by holding as under :" It is the settled practice that a suit is to be tried in all its stages on the cause of action as it existed at the date of its commencement. It is in this context that it was observed:"it would be difficult to accept Mr. Ramdass contention. The plaint does not indicate the option of the plaintiff as an adult. It would require substantial amendment. The plaintiff will have to lead evidence in the suit and cannot rely upon the evidence of the guardian. In the circumstances it would not be proper to accept the contention of Mr. Ramdas and give relief to the plaintiff to carry on the suit. "the aforesaid observations of the Orissa High Court are based on the peculiar facts of that case and nowhere touch the moot question posed for our consideration. ( 15 ) WE were then taken to the case of HAZARI V. SURESH A. I. R. 1979 ALL. 242. In that case two brothers one of whom was a minor instituted a suit for an injunction restraining the defendants from interfering with the irrigation of the plaintiffs fields. The elder brother was the minors guardian. The minor attained majority during the pendency of the suit but thereon he neither elected to continue the suit nor to abandon it. In this context it was held by P. N. Goel J. as under:" The interests of the two brothers being common the elder brother could proceed with the suit even if the younger brother did not apply stating that he elected to continue the suit. Further the elder brother could have maintained the suit even without impleading his minor brother. The latter had also applied in the first appellate court that the fact of his attaining majority may be brought on record. There was nothing to indicate that he had abandoned the suit in the trial court. In these circumstances the omission by the minor to elect to continue the suit did not render the suit in any way defective. The latter had also applied in the first appellate court that the fact of his attaining majority may be brought on record. There was nothing to indicate that he had abandoned the suit in the trial court. In these circumstances the omission by the minor to elect to continue the suit did not render the suit in any way defective. "we fail to understand how these observations of the Allahabad High Court can render any assistance to the petitioner in the present proceedings. In the case of co-plaintiffs even if one plaintiff is minor and even if he does not exercise his option the suit can continue at the instance of the other major plaintiff. The facts of the present case are entirely different and consequently no assistance can be rendered to the petitioner by the aforesaid decision of the Allahabad High Court. ( 16 ) THESE were the only judgments which were placed for our consideration by the learned Advocate General for the petitioner in connection with provision of O. 32 R. 12. He then invited our attention to two other decisions which do not touch upon O. 32 R. 12. One such decision is in MT. SURJI V. MANKI RAM A. I. R. 1951 ALL. 381 wherein Bind Basni Prasad J. of the Allahabad High Court held:" It would be an abuse of the process of the court to allow a decree which is a nullity to stand. The inherent powers of the court should therefore be exercised to set aside such decree. "there cannot be two opinions about the aforesaid proposition of law. If a decree is a nullity it has got to be set aside even by the same court in exercise of its inherent powers. On the same lines is also the decision of this court in BAI HALIMA V. MOHMEDBHAI RAJEBHAI 1 G. L. R. 264 where in A. D. Desai J. held that the suit must end in a judgment and a decree and if a decree passed by the court is held to be a nullity the court is bound to take notice of it and recommence the suit from the stage at which the decree was passed and must be taken to its logical conclusion. The aforesaid decision of this court is also totally besides the point. The aforesaid decision of this court is also totally besides the point. If it is held that the decree passed in the present case by the trial court against the minor plaintiff who really was major at that time was a nullity then consequence must follow of putting the clock back and of directing the learned trial Judge to proceed further in accordance with law from the stage at which invalidity had percolated in its proceedings. But if on the other hand it is found that the decree passed by the trial court was not a nullity no other question would survive for consideration. As we have already held above the decree passed in the present case by the learned trial Judge cannot be said to be a nullity from any point of view simply because the minor plaintiff at the fag end of the trial and at the stage of arguments did not exercise his option one way or the other under O. 32 R. 12 and did not get the record corrected. That inaction on his part had no vital effect on the hearing of the arguments by the learned trial Judge on available evidence led during the time the plaintiff was admittedly a minor. The only step which was taken by the learned trial Judge after the plaintiff became major was to hear the arguments of the respective advocates of both the sides and to decide the same on the available evidence. No vital infirmity can be found in the said proceedings which culminated into the decree of dismissal of the suit of opponent No. 1 plaintiff. It is pertinent to recall that the plaintiff against whom the decree is passed does not challenge the decree on the ground of alleged infirmity resulting from noncompliance with the provision of Order 32 Rule 12. In view of that fact it would be too much for the defendants to contend that noncompliance with the said procedure which has ultimately resulted into the decree in their own favour should have any vital adverse effect on the decree which does not hurt them in any manner even inspite of noncompliance with the said procedure. In view of that fact it would be too much for the defendants to contend that noncompliance with the said procedure which has ultimately resulted into the decree in their own favour should have any vital adverse effect on the decree which does not hurt them in any manner even inspite of noncompliance with the said procedure. It is difficult to appreciate how the defendants including the present petitioner can feel aggrieved by the decree of dismissal of the suit passed by the learned trial Judge which is obviously in their favour and how they can avoid the said decree by submitting that the decree is a nullity on the ground that unsuccessful plaintiff did not opt out one way or the other under Order 32 Rule 12 C. P. Code on attaining majority. At this stage we may also note one submission of learned Advocate General for the petitioner He submitted that if the plaintiff opponent No. 1 had applied to the trial court under Order 32 Rule 12 C. P. Code on attaining majority the petitioner defendant could have requested the court to call the plaintiff as a witness for enabling the defendant to cross-examine him It is difficult to appreciate this contention. If the plaintiff did not decide to enter the box the defendant could not have compelled him to do so and could have at the highest contended for drawing an adverse inference against him. Such a contention can be urged even in the main appeal which is yet to be decided on merits. Hence it cannot be said that noncompliance with the procedural provision of Order 3z Rule 12 by the plaintiff opponent in the trial court has prejudiced the petitioner in any way. ( 17 ) WE may now turn to a few other decisions which have a direct bearing upon the question posed for our consideration. In KHETRABASI PARIDA V. CHATURBHUJA A. I. R. 1968 ORISSA 236 A. Misra J. held that merely because a party who was major was described as minor in the proceedings in the suit the decree passed in the said proceedings would not be rendered a nullity. For reaching the said conclusion the learned judge placed reliance on Division Bench judgments of Patna and Madras High Courts respectively in (1940) 21 Patna Law Times 269 and I. L. R. 39 Mad. 1031. For reaching the said conclusion the learned judge placed reliance on Division Bench judgments of Patna and Madras High Courts respectively in (1940) 21 Patna Law Times 269 and I. L. R. 39 Mad. 1031. The aforesaid Division Bench judgments of the concerned High Courts had taken the view that the decree obtained against a person treating him as minor while in reality he was major on the date of the decree was not a nullity. The said view was rightly accepted by A. Misra J. in the aforesaid case and we fully concur with the same. The Division Bench of the Patna High Court in SARANGDHAR V. PARVATI I. L. R. 32 PATNA 983 was concerned with a situation in which certain respondents who were minors had attained majority at the appellate stage and yet necessary amendment was not made in the appellate proceedings. Considering the effect of the said situation Narayan J. speaking for the Division Bench held that absence of necessary amendment in the appeal proceedings had no adverse effect on the suit. ( 18 ) IN LANKA SANYASI V. LANKA YERRAN NAIDU AND OTHERS A. I. R. 1928 MAD. 294 a Division Bench of the Madras High Court had to consider the effect of noncorrection of the defendants description as minor through his guardian ad litem when he became major during the pendency of the proceedings on the binding nature of the decree passed against such defendant in the suit. It was observed by Madras High Court in the aforesaid case:" Mere circumstance that a minor defendant had attained majority during the pendency of the suit and has not elected to continue the defence himself is not sufficient to enable him to have declared as not binding on him the judgment duly pronounced by the court. It was observed by Madras High Court in the aforesaid case:" Mere circumstance that a minor defendant had attained majority during the pendency of the suit and has not elected to continue the defence himself is not sufficient to enable him to have declared as not binding on him the judgment duly pronounced by the court. " ( 19 ) FOLLOWING the ratio of the aforesaid judgment of the Madras High Court a Division Bench of the Kerala High Court in SAVITHRI V. VASUDEVAN NAMBUDIRI A. I. R. 1959 KERALA 387 has held if minor defendant who was sued through the guardian ad-litem does not choose to defend the suit when he attained majority and allows the case to proceed as though he was still a minor without bring to the notice of the court the fact of his having attained majority then he must be deemed to have elected to abide by the judgment or adjudication by the court with respect to the matter in controversy on the basis of the .