JUDGMENT 1. - This appeal is directed against the judgment and decree dated 15.9.1987 passed by the Additional District Judge No.1 Udaipur whereby the plaintiff's suit for possession was decreed. 2. The plaintiff respondent Laxmilal had to bring the suit in the peculiar circumstances. 3. The facts leading to the present appeal may briefly be stated as follows. The plaintiff respondent had obtained a decree for eviction of the shop situated in Mochivada, Udaipur on 11.5.1971 from the Court of Munsif Udaipur. Against that an appeal was preferred. The learned Civil Judge, modified the decree in respect of the sum Rs. 612/-. The learned Civil Judge held that the plaintiff landlord was not entitle to recover a sum of Rs. 612/- from the defendant tenant which have already been paid. The decree for eviction was maintained. He levied the execution of the decree for eviction on 17.1.1973 and a warrant under Order 21, Rule 35 CPC dated 10.3.1973 was issued. The warrant of possession was executed, the plaintiff decree-holder in that suit moved an application for issuance of fresh warrant for delivery of possession as the judgment debtor forcibly occupied the shop but that application was dismissed by the learned Munsif by his order dated 26.4.1975. The decree holder went in appeal and the learned Additional Civil Judge, by his order dated 6.10.1976 set aside the order of the Munsif and directed him to issue a fresh warrant for delivery of possession in accordance with law. The judgment debtor tenant preferred an appeal before this Court. This Court allowed the appeal of the judgment-debtor and it was held that once the decree has been executed and delivery of possession has been effected and if the judgment debtor had reentered into the property, then the decree-holder's remedy is to file a fresh suit and it was found that actual possession of the shop was delivered in execution of the warrant of possession. This Court allowed the appeal and set aside the order of the learned Civil Judge and order of the Munsif was restored. 4. The plaintiff Laxmilal thereafter filed the present suit against Sobhalal the tenant, his wife Smt. Motibai, his two sons Hiralal and Laxminarayan and daughters Anandibai and Sushilabai. It was alleged by the plaintiff that in execution of the warrant of possession interference was made by the defendants in execution. 4. The plaintiff Laxmilal thereafter filed the present suit against Sobhalal the tenant, his wife Smt. Motibai, his two sons Hiralal and Laxminarayan and daughters Anandibai and Sushilabai. It was alleged by the plaintiff that in execution of the warrant of possession interference was made by the defendants in execution. Door of the shop was broken and the intervening wall between the two portions was also demolished and the goods of the defendants were put out of the shop. Even after so much of action in execution, the defendants No. 2 Smt. Motibai along with her daughters entered into this vacant and partially demolished shop. In such circumstances Admin made an endoresment regarding delivery of possession and it was announced by him that possession of the shop has been delivered to the plaintiff decree holder. It was alleged that the defendants are tres-passers in the shop and the plaintiff is entitled to a decree for possession. The suit was resisted by the defendants and they submitted their written statement denying the plaintiffs title over the shop in question. Necessary issues were framed at the trial. The plaintiff Laxmilal examined himself as PW 1 and from the defendants side, Motibai appeared as DW 1. 5. It may be stated that during the pendency of the suit, Sobhalal defendant No. 1 had expired and an application was moved on 8.11.1985 to bring the other legal representatives on record. It was stated in the application that five legal representatives; the widow, the two sons and two daughters are already on record. Besides these heirs, the deceased Sobhalal had left two more sons namely Ranjit Lal and Shyamu and two daughters Sobhabai and Laxmibai. Ranjitlal, Shyamu and Sobhabai are minors and are living under the guardianship of their mother in Mohalla Mochivada. Laxmibai had become major and she is married. Notice of this application was issued under Order 22, Rule 4 CPC. The notice was personally served on Laxmibai and three minors notices were issued to their mother Motibai and they were accepted by Motibai on 26.7.1986. On 6.9.1986 time was sought on behalf of the heirs of the deceased by Shri Gopal Singh Deora and 23.9.1986 was fixed. On 23rd Sept. further time was sought on behalf of the heirs for filing reply on which last opportunity was given and 30th Sept. On 6.9.1986 time was sought on behalf of the heirs of the deceased by Shri Gopal Singh Deora and 23.9.1986 was fixed. On 23rd Sept. further time was sought on behalf of the heirs for filing reply on which last opportunity was given and 30th Sept. was fixed and on 30.9.1986 on behalf of the heirs learned counsel stated that these defendants do not want to submit any reply. The case was then posted on 11.11.1986 for arguments on issue No. 2. After recording the evidence of both the parties and hearing the arguments the learned Additional District Judge No. 1 Udaipur decreed the plaintiff's suit. Dissatisfied with the judgment and decree, this appeal has been filed. 6. I have heard Shri R.L. Maheshwari, learned counsel for the appellant and Shri N.P. Gupta learned counsel for the plaintiff respondent. 7. On behalf of the appellants Shri R.L. Maheshwari vehemently urged that the trial proceeded against the minors Ranjit, Shyamu and Sobhabai without appointment of any guardian for the suit and there was non-compliance of 0. 32 R. 3 CPC. The appellate Court passed the decree against these minors as well. Such a decree, in the absence of appointment of their guardian in the suit, is a nullity and deserves to be set aside. Mr. Maheshwari submitted that minors were not represented in the suit and as such serious prejudice has been caused to them. If the guardian would have been appointed, he would have watched their interest in the suit and necessary evidence would have been led by him in their interest. He submitted that it is true that the major heirs of the deceased Sobhalal including the mother of the minor were parties to the suit but that does not absolve the Court from its duty, to appoint a guardian for the suit in respect of minors. The Court having not complied with 0.32 R. 3 CPC, the decree against the minors deserves to be set aside. In support of the contention Mr. Maheshwari placed reliance on a decision of the Supreme Court in Ramchandra Arya v. Mansingh, AIR 1968 SC 954 . Another decision of the Supreme Court in Rajindersingh v. Gurchand, AIR 1984 Punjab & Haryana 346 was also relied upon. 8. It is not in dispute that no person as such was appointed by the Court as guardian for the suit of the three minors. Another decision of the Supreme Court in Rajindersingh v. Gurchand, AIR 1984 Punjab & Haryana 346 was also relied upon. 8. It is not in dispute that no person as such was appointed by the Court as guardian for the suit of the three minors. In narration of facts, it was noticed that in the application by the plaintiff to bring the remaining heirs of the deceased Sobhalal on record, it was stated that the three minors are living under the guardianship of their mother and mother is their natural guardian and the notice of the minors under Order 22, Rule 4 CPC were served on Smt. Motibai in her capacity as the guardian of the minors. Motibai was represented by her two counsel namely Gopal Singh Deora and Shri Mahendra Singh Chouhan. After service of the notices on the minors through their guardian, on behalf of minors time was sought for filing reply on two dates and on the third date it was expressed on their behalf that they do not want to file any reply. Separate vakalatnama on behalf of Motibai in her capacity of guardian of minors undoubtedly was not filed nor the Court passed any order appointing Smt. Motibai as the guardian of the minors for the suit. The question would; can it be said that the minors were represented in the suit ? If it can be found that they were represented in the suit, although without any order of appointment of guardian what would be the effect of such representation and in case it is found that they were not represented, then undoubtedly it can be said that such a decree passed against the minor would be nullity and would deserve to be set aside as the minors were not at all represented.The question of representation assumes importance as there is no formal order of appointment of any guardian for the minors in the suit. The argument would not have been available if there had been a formal order of appointment under Order 32, Rule 3 CPC, R. 3 of 0. 32 CPC reads as under :Rule 3 Guardian for the suit to be appointed by Court for minor defendant. (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. 32 CPC reads as under :Rule 3 Guardian for the suit to be appointed by Court for minor defendant. (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 maybe obtained upon application in the name and on behalf of the minor or by the plaintiff. (3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. (4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, (upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian) of the minor, or, where there is (no father, mother or natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule. (4A) The Court may, in any case, if it thinks fit, issue notice under sub-ruff (4) to the minor also.) ` (5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and had any proceedings in the execution of a decree. A perusal of the sub-rule (1) of R. 3 would show that the Court shall appoint a proper person to be the guardian for the suit for such minor when the Court is satisfied about the minority of the defendant. The three minors admittedly were minors and under sub-rule (1) R. 3 Court should have appointed a guardian of the minors for the suit. The effect of non-compliance of sub-rule (1) of R. 3 has to be seen. The three minors admittedly were minors and under sub-rule (1) R. 3 Court should have appointed a guardian of the minors for the suit. The effect of non-compliance of sub-rule (1) of R. 3 has to be seen. In the Supreme Court's decision in Ramchandra v. Mansingh (supra) a decree was passed against a Lunatic ward appointment of guardian. No such question arise for consideration that where a minor is represented through the natural guardian, what is the effect of the decree having been passed against the minor in the absence of formal order of appointment of natural guardian as guardian for the suit. As already expressed if a decree would have been passed against any unrepresented minor, the decision of the Supreme Court would have been applicable. 9. In Rajindersingh v. Gurchand , (supra) again the facts are somewhat different. In para 10 of the report after referring to the provision of 0. 32 R. 3 CPC, it has been stated that the intention of law is clear that it is the sacred function of the Court, be it civil or revenue or a tribunal to safe-guard the interest of a minor in any pending proceedings. It was further observed that in the instant case impugned order itself shows that no guardian of the appellant was appointed by the Assistant Collector. On the contrary the appellant was not even described as a minor. The appellant's mother was no doubt a party to these proceedings but she was never appointed as minor's guardian. It was held that the impugned order having violated O. 32 R. 3 CPC is a nullity and ineffective so far as the appellant is concerned. It would appear that minor was not even shown as minor and the mother did not act as the minor's guardian. In these set of facts applicability of 0. 32 R. 3 CPC was considered and it was found that there was violation of the provision and order is nullity and ineffective. In the present case as already considered, he mother was described as natural guardian of the minors and notice was sent to her and she was already represented through her counsel. A separate vakalatnama undoubtedly was not filed but in my opinion it was not necessary as the intention is manifest from the proceedings dated 6.9.1986, 23.9.1986 and 30.9.1986. In the present case as already considered, he mother was described as natural guardian of the minors and notice was sent to her and she was already represented through her counsel. A separate vakalatnama undoubtedly was not filed but in my opinion it was not necessary as the intention is manifest from the proceedings dated 6.9.1986, 23.9.1986 and 30.9.1986. The Court was aware that the minors are being represented and the Court gave time as was sought on behalf of the minors and the Court proceeded in the matter, considering that Motibai being the natural guardian of the minor and she is represented through her counsel or in her capacity as natural guardian for minors time is being sought by her through her counsel on behalf of the minors, else G.S. Deora her counsel would not have sought time and Court would not have allowed him to take time. As they were represented by Motibai and Motibai being the natural guardian and the Court took it that the natural guardian is seeking time for filing reply on behalf of the minors. It is in this manner the Court proceeded in the suit without passing specific order appointing Smt. Motibai as guardian for the minors in the suit in the present case. Thus it cannot be said that the minors remained unrepresented. It may be stated that the other sons and daughters of the deceased Sobhalal were already on record. Another major daughter Laxmibai was also served but she did not put in appearance. In such state of affairs, after notice to the minors through their natural guardian and after having seeking time and the same having been given by the Court, hardly it can be said that the minors were not represented in the suit. This appears to be only an irregularity in the proceeding that a formal order of appointment of guardian for the suit was not passed by the Court. 10. Mr. N.P. Gupta, learned counsel for the plaintiff respondent referred to a decision of the Punjab and Haryana High Court in Chater Bhuj Goel v. Gurpreet Singh, AIR 1983 P & H 406 . In that case the suit was filed by the appellant Chatur Bhuj for specific performance against Gurpreet Singh minor son of Col. Sukhdev Singh through his natural guardian and father in the hearing of the plaint. It is further added that Col. In that case the suit was filed by the appellant Chatur Bhuj for specific performance against Gurpreet Singh minor son of Col. Sukhdev Singh through his natural guardian and father in the hearing of the plaint. It is further added that Col. sukhdev Sigh was also acting as his guardian as he got permission on 11.4.1979 from the competent Court to sell the property in question. Written statement was filed by Col. Sukhdev Singh in which he admitted that on 4.6.1979 he as a guardian of his minor son had entered into an agreement with the appellant for the sale of the house in dispute. A contention was advanced on behalf of the respondent that the commission to secure an order of the Court in terms of 0.32 R. 3 CPC for the appointment of Col. Sukhdev Singh as the guardian of his minor son renders the proceedings conducted in the suit, filed by the appellant a nullity because it shall be assumed that the minor was not legally represented therein. On behalf of the appellant it was urged that the proceedings would not be rendered void, inasmuch as the minor was factually and effectively represented by his natural guardian although no formal application for the appointment of Col. Sukhdev Singh as the guardian in terms of 0. 32 R. 3 CPC was made nor the Court passed a formal order for his appointment. The learned Judge after considering the provision of 0. 32 R. 3 CPC and the Supreme Court's decision in Ramchandra Arya v. Mansingh (supra) and other case law including Full Bench decision of the Punjab and Haryana in Amrik Singh v. Karnail Singh, AIR 1974 P & H 315 , held that it is thus obvious that Gurpreet Singh minor was represented in the suit by his father Col. Sukhdev Singh and with the implied sanction of the Court. With regard to the decision of the Punjab and Haryana Court in Amrik Singh v. Karnail Singh it was observed that it is rather clear that the ratio of this judgment will be applicable to a case where no guardian ad litem under Order 32, Rule 3 is appointed but factually the guardian of the minor has represented him throughout and further the minor has no suffered any prejudice by non-compliance of the provisions of 0. 32 R. 3 CPC. 11. Mr. 32 R. 3 CPC. 11. Mr. Gupta referred to another decision in Babu & Anr. v. Smt. Sunder Bai & Ors., 1982 WLN 616 . The minor was represented through his earlier brother and Karta of the family and he was qualified to act as the guardian. The elder brother Bansilal did not have any interest adverse to that of his minor brother. Formal order was not passed by the Court appointing Bansilal as guardian in the suit ad lit em of Babu. It was held that the same could not vitiate the proceedings and render the decree a nullity, because Babu defendant was effectively represented by his elder brother Bansilal in the suit. It was also observed that in the trial Court Bansilal was allowed to represent Babu in the suit. It has also been held that Bansilal was recognised by the Court as the de facto guardian of the minor defendant it impliedly assented to his appointment as guardian of the minor defendant. 12. Reference may also be made to another decision of this Court in Anandram & Anr. v. Madholal, AIR 1960 Raj. 189 . In that case as well the minor defendant was effectively represented by his father who was also one of the defendants. There was no conflict of interest. Due to inadvertence a formal order of appointment was not made. It was held that decree cannot be set aside as no prejudice has been caused to the minor who was represented in the suit. 13. It may be stated that R. 3-A of 0.32 has further been introduced which makes a provision to the effect that no decree against minor can be set aside unless prejudice is caused to his interest even when interest of the next friend or guardian for the suit is adverse to minor. If no prejudice has been caused to the interest of the minor, the ground that the next friend or guardian having adverse interest would not be a ground for setting aside the decree. The legislative intent appears to be clear that it is only when prejudice has been caused to the interest of the minor, the decree has to be set aside. In the circumstances of this case in my opinion it cannot be said that any prejudice has been caused to the minors. The legislative intent appears to be clear that it is only when prejudice has been caused to the interest of the minor, the decree has to be set aside. In the circumstances of this case in my opinion it cannot be said that any prejudice has been caused to the minors. The decree-holder was already put into possession in execution of the decree for eviction. It appears that the defendants forcibly re-entered the premises and it is in these circumstances the plaintiff had to file a suit for possession. Mr. Maheshwari submitted that having regard to the nature of the statement of Motibai, it should be taken that she was not having a sound mind and as such there was no proper representation by her. I am unable to agree with this submission of the learned counsel for the appellant. In defence evidence no other defendant appeared. Only Motibai appeared and she pleaded ignorance to all questions. It may be stated that as a matter of fact the defendants could have no legitimate defence. They were defenceless. Simply because she gave evasive answers and pleaded ignorance even about the shop in question, the inference which Mr. Maheshwari persuaded this Court to draw, in my opinion cannot be drawn. He also submitted that under sub-rule (3) of R. 4 of O. 32 consent has to be taken in writing of the guardian for the suit it is only after obtaining the consent that an appointment can be made by the Court. This provision would not be attracted as no appointment has been made by the Court. As already stated the question before this Court is, as what is the effect of absence of order of appointment for the guardian of the suit, in the facts and circumstances of the case. I have already considered that the effect is that it is only an irregularity and the minors were sufficiently represented in the proceedings of the suit and no prejudice has been caused to the minors, as such the decree passed against the minors is not rendered nullity and does not deserve to be set aside. 14. No other point has been pressed before me. 15. This appeal has therefore no force so it is hereby dismissed with no order as to costs. 16. 14. No other point has been pressed before me. 15. This appeal has therefore no force so it is hereby dismissed with no order as to costs. 16. Learned counsel for the appellant submitted that the appellants may be allowed 6 months time to vacate the property in question and to deliver peaceful possession to the decree-holder. In my opinion ends of justice would be served if three months time is allowed. Accordingly three months time is allowed to the appellants to handover vacate possession of the property in question to the plaintiff decree holder provided the appellants furnish an undertaking to this effect within three weeks that they will handover vacant peaceful possession of property in question to the plaintiff decree-holder in the aforesaid time. In case the aforesaid condition is not complied with, then it would be open to the decree-holder to get the decree executed.Appeal Dismissed. *******