JUDGMENT Pankaj Naqvi,J.: - Power of Sri B. Dayal on behalf of respondents, is taken on record. 2. Learned counsel for appellant is permitted to carry out necessary correction in the description of the array of parties in the appeal. 3. Heard Sri Arvind Srivastava, learned counsel for appellant and Sri B. Dayal, learned counsel for respondents. Both the learned counsels agree and request that as no records are necessary, appeal be heard and disposed of on the following substantial questions of law: "E.- Whether, the court below made an error apparent on the face of record in ignoring the provision of Order XXXII Rule 3 C.P.C. which provides that any person can become next friend, the finding of the court below that Chintaram cannot be the next friend of the minors suffers from manifest illegality. G.- Whether, in spite of the appellant having become major during the pendency of the appeal and having categorically stated that the mother of the appellant was not their guardian and further that she has re-married and was living at Gopalpur which was admitted by their mother the court below made an error apparent on the face of record in passing the impugned judgment." 4. For the sake of convenience, parties shall be referred as they were described in trial court, i.e. as plaintiff/defendant, which would also include their predecessor, unless specified otherwise. 5. Aditya Prasad Chaturvedi instituted a suit for specific performance against defendants on the allegations that husband of defendant no. 1 and father of defendant no. 2 to 5, i.e., Ram Ashrey executed a registered agreement to sell dated 6.6.1998 in respect of Arazi no. 19 (area 2.78 acres) situate at Mauza Narrotampur for Rs.40,000/-, out of which an earnest of Rs.30,000/- was paid at the time of execution of the agreement and balance was agreed to be paid within a year. It was alleged that plaintiff was always ready and willing to perform his part of contract and in that connection, sent a registered notice dated 22.5.1999 to defendants for execution of sale deed at Tehsil Auraiya on 5.6.1999, but the predecessor of defendant no. 1, i.e., Ram Ashrey failed to turn up on the date fixed. Ram Ashrey died. The defendant nos. 1, i.e., Ram Ashrey failed to turn up on the date fixed. Ram Ashrey died. The defendant nos. 1 to 5, being legal heirs of Ram Ashrey, were also called upon by registered notice dated 23.9.1999 for execution of sale deed on 05.10.1999, which notice was refused, hence the suit. 6. The suit was contested on the ground that no agreement was ever executed by Ram Ashrey (deceased) and that alleged agreement is forged and fabricated. Despite notice, defendants did not contest the suit and the case proceeded ex parte. 7. The trial court after considering the evidence on record decreed the suit for specific performance. The minor defendants, namely, Awneesh, Ashish, Amit and Anuj preferred Civil Appeal No. 3 of 2011 through their maternal-grandfather Chinta Ram, which was dismissed on the ground that a maternal-grandfather, would not be competent to maintain the appeal, when mother of minors had already contested the suit proceedings. Second Appeal No. 468 of 2014 has been preferred by Defendants-appellants- Awneesh Kumar & Ashish Kumar and Second Appeal (Def.) No. 104 of 2014 has been preferred by Defendants-appellants-Amit Kumar & Anuj, challenging the judgments and decree dated 22.1.2014, whereby suit for specific performance has been decreed. 8. It was strenuously contended by Sri Arvind Srivastava, learned counsel for appellant, that defendant nos. 2 to 5 were minors, and as their mother for fear of her life, was unable to prosecute the interest of her minor children, said first appeal was preferred through maternal-grandfather, which on the facts of the case, could not have been dismissed on the ground of maintainability. Sri Srivastava further submits that minor defendant nos. 2 & 3, namely, Awneesh and Ashish also attained majority during the pendency of appeal and accordingly they filed an application supported by an affidavit (Annexure-6) that by an amendment factum of attaining majority be brought on record. Thus, he submits that said minors on coming of age had elected to prosecute the appeal in their own independent capacity, which is evident from the description of the array of parties of the judgment of the lower appellate court. 9. Thus, he submits that said minors on coming of age had elected to prosecute the appeal in their own independent capacity, which is evident from the description of the array of parties of the judgment of the lower appellate court. 9. Per contra, Sri B. Dayal, learned counsel for respondents, submits that once mother of minor adults had represented the interest of minor children by filing a written statement, then notwithstanding a formal appointment, she would continue to be the guardian even in appeal, unless discharged in accordance with law . Thus, he submits that appeal at the instance of maternal-grandfather was not maintainable. He also submitted that Annexure-6 cannot be construed as an option to elect to prosecute the appeal on attaining majority by appellants Awneesh and Ashish. 10. There could be no dispute with the proposition that no suit/appeal can be instituted without a next friend and similarly no minor defendant/respondent can be permitted to contest a suit/appeal, etc. without a guardian- ad litem, having been appointed. This is the essence of Order XXXII Rules 3&4 C.P.C. 11. The mother of minor children filed an affidavit/application dated 16.1.2010 (Annexure-5) before the appellate court that she is not ready and willing to be the next friend of minor appellants for fear of her life, as the murderer of her husband were also after her life and minor children were at the relevant time in the guardianship of their maternal-grandfather Chinta Ram. She also stated that after the death of Ram Ashrey, father of minor children, all rights and duties qua children were being discharged by said guardian. 12. The Court is satisfied that this fact in itself was sufficient to disentitle mother to prosecute the appeal on behalf of minor children. Once this position is conceded, appeal at the instance of maternal-grandfather could not have been dismissed on the ground of maintainability. 13. However, the issue as to what would be the effect of maintainability of appeal qua minors who attained majority during the pendency of appeal, is to be examined in the light of Order XXXII, Rule 12 C.P.C. which is quoted hereunder: ”12. 13. However, the issue as to what would be the effect of maintainability of appeal qua minors who attained majority during the pendency of appeal, is to be examined in the light of Order XXXII, Rule 12 C.P.C. which is quoted hereunder: ”12. Course to be followed by minor plaintiff or applicant on attaining majority: - (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 the suit or application, he shall apply for an order discharging the next friend an 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).... (5).... 14. A perusal of the aforesaid provision would indicate that a minor plaintiff or applicant on attaining majority has a right to elect as to whether he would proceed with the suit or application in his own name or not. Rule 2 provides that when he elects to do so, he shall apply for an order discharging the next friend and for leave to proceed in his own name. It could not be disputed that the said provision would also apply qua defendants/appellants in appeal. 15. Reverting to the facts of the present case, the Court finds that an application supported by an affidavit (Annexure-6) filed by defendant-Awneesh Kumar seeking to bring on record the factum of attaining majority of minors, i.e., Awneesh and Ashish in the appeal had been filed. No doubt, there was no express request that they be granted liberty to prosecute the appeal in their own independent capacity, but once the factum of majority was brought to the notice of the Court, it was the duty of the Court to have inquired from the said applicants as to whether they would like to proceed with the appeal in their own name or not. The position would have been different if the factum of attaining majority was not brought to the notice of the Court and proceedings are allowed to continue. But that is not the position in this case. The position would have been different if the factum of attaining majority was not brought to the notice of the Court and proceedings are allowed to continue. But that is not the position in this case. The Court has to ascertain the substance of application, and if this course is adopted, inevitable conclusion was that defendant-appellant-Awneesh & Ashish wanted to continue the appeal in their own names. Moreover, a perusal of certified copy of appellate court judgment, reveals that array of parties describes appellants- Awneesh and Ashish in their independent capacity, i.e. they were no longer represented by their maternal-grandfather. Once this position is conceded to non-suit appellants only on the ground that as initially appeal filed by them through their maternal-grandfather was not maintainable, is patently erroneous in law. Sri B. Dayal, learned Senior Counsel for respondent in all fairness, does not challenge this part of the finding recorded by the court below. 16. Both the Second Appeals succeed and are allowed. The impugned judgment and decree are set aside. The matter stands remanded to the appellate court with the direction to decide the appeal afresh, in the light of observations made hereinabove, and in accordance with law, as expeditiously as possible, preferably within 6 months from the date of production of certified copy of order, subject to cooperation of parties concerned. Parties shall appear before the court concerned on 7.7.2014. No order as to costs.