JUDGMENT : R.K. MAHAJAN, J. 1. This is a Second Appeal directed against the judgment and decree dated 18.12.1980 passed by Shri. Parmeshwar, Civil Judge, Basti by virtue of which he set aside the suit of the lower court dated 11.1.1975 passed by Shri. Ashok Kumar, Munsif, Basti by virtue of which the Defendants were restrained to make any construction in the possession of the Plaintiff-Appellants over plot No. 195/1, 195/2, 197/1 and 1535/10 in village Pakrijabti. He also passed a decree for demolition as mentioned in letters S.M.L.Q. in plot No. 1535/10 and 1136/111 Old and M.R.P.O. in plot No. 197/1. 2. The suit was filed by Plaintiff-Appellants for permanent injunction on the basis of titles and possession over the suit land. It was alleged that in 1935 there was exchange between the fattier of the Plaintiff and the Defendant, the Plaintiff obtained plot No. 1952 and 1971 and in lieu thereof portion of plot Nos. 177 and 178 were given to the Defendant and as such became the owner of the disputed plot. It was alleged that the Defendant raised construction on the plots No. 1535/10 and 197/1 by way of encroachment and as such, the suit for demolition of construction and further interference of any kind sought was filed. 3. Learned Counsel for the Defendant-Respondent denied the plea of the Plaintiff-Appellants in toto and submitted that they had raised construction in their property and not in the land of the Plaintiff-Appellants, as alleged. 4. The trial court gave a finding that exchange is not valid as exchange was not affected by registered document as required under the Transfer of Properly Act read with Indian Registration Act. The trial court was also of the view that since the Plaintiff is the sole owner of the plot under which the construction has been done illegally. 5. The appellate court non-suited the Plaintiff on the ground that there was no proper appointment of guardian of minor and decree against the minor is void and hence this Second Appeal has been filed. 6. 5. The appellate court non-suited the Plaintiff on the ground that there was no proper appointment of guardian of minor and decree against the minor is void and hence this Second Appeal has been filed. 6. At the time of admission of this Second Appeal, the following question of law was framed: Whether a decree passed by the trial court should be set aside on the ground that some of the parties were neither even though an application had been moved for appointment of guardian ad litem during the proceedings in the courts below which application remained pending and no orders were passed. No other substantial question of law was formed. 7. Learned Counsel for the Appellants Shri. Shashi Nandan has submitted that the Plaintiff-Appellants cannot be punished for the dismissal of the suit if no orders are passed by the Court for appointment of the guardian (minor) when the proper application along with the affidavit has been filed. There is no dispute that the application was filed. During the pendency of the suit when Defendant No. 1 Ram Raj died. Ram Raj's son and widow are already party to the suit and application for substitution of two minor sons was filed and widow was mentioned as guardian for the purpose of appointment. The trial court invited objections but no objection was filed for substitution of the legal representatives and the plaint was accordingly amended. However, by oversight the learned trial Judge could not pass the order. Had the counsel of any party brought to the notice of the learned Judge would have also passed the orders? Had the application not been filed under Order XXXII, Rule 3 of CPC case would have been different? Order XXXII, Rule 3 of CPC is quoted with an advantage: Order XXXII, 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 may be obtained upon application in the name and on behalf of the minor or by the Plaintiff. (2) An order for the appointment of a guardian for the suit may be 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 other 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. ... 8. Learned Counsel for the Respondent has relied upon Nauiumal v. Mohd. Nazir Beg and Anr. AIR 1955 All 584 , which lays down that the decree of the trial court, is vitiated in case no guardian of the Defendant was appointed. This ruling is not applicable in the facts and circumstances of the case as the case has been properly perused by the mother who had no adverse interest against the minor nor there is a plea that she has conducted the suit negligently. 9. Learned Counsel for the Appellants has relied upon Brij Kishore Lal Vs. Satnarain Lal and Others, AIR 1954 All 599 Para 4 of this judgment is quoted with an advantage: It has been held In a number of reported cases that If some formalities for the appointment of a guardian have not been observed, but if the guardian has agreed to act as guardian and has done something In the suit, to show that he accepted his appointment as a guardian, the mere fact that some formalities have been overlooked or not observed, or there was no formal order of appointment, would not vitiate the proceedings or would not affect the result of the suit, provided there has been no prejudice to the minor. 10. 10. The Privy Council in Wallian v. Banke Bihari Prasad Singh (1993) ALI 30 Cal 1081 (PC) has held that the absence of a formal order of guardian was not fatal to the suit, where the Interest of the minor has not been prejudiced quiet the defect in the procedure. 11. Learned Counsel for the Appellants has also relied upon Rangammal v. Minor Appaswami and Ors. AIR 1973 Mad 12 . 12. It follows as a natural sequence that passing of a formal order is not in the hand of the Appellants and he should not suit In Procedure is only meant to regulate the proceeding and it does not scuttle the substantive right of the parties and the parties should not be defected to murder there they had appointed over the petition of public and judicial reductionaries. 13. I am of the considered view that the mother was already on record and she was representing the Interest of the minor and her interest and the interests of the minor were not conflicting and no prejudice or failure of justice has been caused by not making a formal order and the appellate court should not have set aside the decree on this very ground without going Into other Issues. The appeal is a rehearing of the suit and in case, this Court assumes role of appellate court and gives finding on other issues, it would cause great injustice. There would be loss of right of appeal. It is a proper and fit case where the order of remand is necessitated for rehearing the appeal on merits as the fact-finding decision has not been given on other aspects of the case and mainly the appeal has been accepted that no guardian was appointed. 14. To do complete justice, I set aside the decree of appellate court and remand the case to the appellate court for rehearing the appeal on merits without Ignoring that the Defendant was not represented by mother by this time the Defendant must have become a major and he can be also given notice for the purpose of this appeal. 15. The appeal is accepted and the case is remanded to the appellate court and no decide the case in accordance with law and (lie appeal should be disposed of within four months from the receipt of a certified copy of this order. 15. The appeal is accepted and the case is remanded to the appellate court and no decide the case in accordance with law and (lie appeal should be disposed of within four months from the receipt of a certified copy of this order. The parties are to appear on 10.3.1997 before the court concerned. The lower court record be returned immediately.