JUDGMENT S.K. Lakhtakia, Member - This is a reference made by Additional Commissioner, Gorakhpur Division, Gorakhpur dated 25-3-1985 through which he has recommended that the order of the S.D.O. Hansgaon, Gorakhpur dated 24-9-1977 be set aside. 2. The facts of the case in brief are that a suit was filed under Section 229-B of the U.P.Z.A. & L.R. Act by Siddhu and his brother Chandrabali against several persons, including one Ram Bharosey and one Satau. The relief was sought for the plaintiff as well as for on the defendant Satau. The suit was ex parte decreed on 28-3-1980. On 1-5-1974 Smt. Surajdei opposite party no. 4 wife of Ram Bharosey applied for the restoration of the suit on the ground that she or her husband had no information about the suit or the decree and, therefore, the same deserved to be restored. She stated that her husband had left the village about 23 years back and had disappeared since then and that she is his sole heir. The plaintiff contested the application alleging that Ram Bharosey was not dead but he was carrying on business in Jalpaiguri and, therefore, his wife has no right to get the suit restored. It was also contended by him that Ram Bharosey had full knowledge about the proceeding and the decree of the suit and that Smt. Surajdei had also during consolidation operation learnt about the decree of the suit, hence the application was bad and time-barred. 3. The learned S.D.O. allowed the application for Smt. Surajdei and setting aside the ex-parte decree restored the suit. A revision was filed by Satau defendant no. 7 for whose benefit also the relief was claimed in the plaint. The learned Additional Commissioner came to the finding that Ram Bharosey had no knowledge about the suit but the application of Smt. Suraj Dei was time-barred and, therefore, was liable to be dismissed since no prayer had been made for the condonation of delay. He has, therefore, made a reference to this court to allow the revision and to set aside the order of the trial court, about the restoration of the suit. 4. Heard the learned counsel for both the parties and perused the record. 5. There is no doubt that the application of Smt. Suraj Dei was time-barred because she had not made any prayer for the condonation of delay. 4. Heard the learned counsel for both the parties and perused the record. 5. There is no doubt that the application of Smt. Suraj Dei was time-barred because she had not made any prayer for the condonation of delay. Her application, therefore, deserved to be dismissed on this ground. However, one glaring illegality has come to my notice that one Moti, defendant no. 3, was a minor at the time of the institution of this suit. One Vishwanath was mentioned as a guardian in the plaint but later an affidavit was moved on 6-1-1960 by the plaintiff that the guardian of Moti was her mother Smt. Dharmi. No application was, however, moved separately beside this affidavit for appointment of the guardian of the minor. Thereafter another application was moved on 1-2-1960 in which it was stated that in fact the name of the mother of the minor was Parmi and her name as Dharmi had wrongly been mentioned, hence it was requested that the plaint be allowed to be amended. His application was allowed but no amendment of the plaint was over made and no guardian was appointed by the court for the minor. In these circumstances the decree was obtained against the minor without the appointment of a guardian such decree was, therefore a nullity being against the provisions of Order XXXII Rule 3 C.P.C. and deserved to be set aside even though it has not been assailed by the minor or his guardian. This irregularity amount to a grave illegality and vitiates the proceeding. Consequently while exercising the revisional powers it is the duty of this court to set aside an illegal decree which has been obtained by the plaintiff against law. 6. The learned counsel for the revisionist has relied on a ruling reported in 1952 AIR All. page 240 Birbhan v. Harmukhrao in which it has been held by Hon'ble High Court that if a guardian of a minor does not obtain leave of the court as required by Sub-Rule (1) of Rule 7 of Order 32 to enter into an agreement to refer the case to arbitration it has not the effect of rendering the order of reference and the award void ab-initio, but has merely the effect of rendering it only voidable at the option of the minor. The learned counsel for the revisionist argued that in view of this ruling the decree passed in this case is only voidable and is not void and, therefore, the decree should not be annulled. 7. I do not agree with this argument, because the judgment in the aforesaid ruling is a different point since in the case reported in the aforesaid ruling a guardian had been appointed who might have acted without the leave of the court but in the instant case no guardian had been appointed at all by the court and even then a decree had been passed. In these circumstances the said ruling is of no help to the revisionist. Consequently the reference is rejected and the order of the S.D.O. even though on the application of Smt. Suraj Dei deserved to be maintained and is accordingly upheld and the suit is, therefore, restored and the ex parte decree passed on 28-3-1960 is set aside. The village has already undergone consolidation operation, as a result of which this suit stands abated under Section 5 (2) of the C.H. Act.