JUDGMENT
1. A preliminary objection is taken to the hearing of this appeal and for the purposes of this objection only a few facts need be mentioned.
2. The plaintiffs instituted a suit for pre-emption of a zamindari property as well as a house. The defendants vendees were minors. A relation of theirs refused to act as their guardian, and the Court appointed Mr. Makhan Lal, a vakil of the Court, as the guardian ad item of the minors, The case was fought out and was decreed both as against part of the zamindari and a house. The guardian ad litem did not prefer any appeal from that decree; but a memorandum of appeal was filed on behalf of the minors by their father Wilayat Ali. A note was added to the memorandum of appeal to the effect that
in the original suit, Babu Makhan Lal vakil was appointed the guardian ad litem of the appellants by the Court. As he is not ready to prefer this appeal, he has been included in the array of the respondents.
3. There was no formal application filed by the father of the appellants for the removal of the guardian ad litem and for the appointment of himself in his place. Nor does it appear that Mr. Makhan Lal appeared at the time of the hearing of the appeal. During the course of the argument a suggestion was thrown out by the advocates for the appellants that the defeat of the appeal having been preferred by a person other than the guardian ad litem might be remedied by ordering that the person through whom the appeal had been filed should be appointed guardian ad litem for the purpose of the appeal. The learned Judge thought that he had no power to do this and refused to take any such step. He dismissed the appeal as being incompetent. But to avoid any further remand he proceeded to record his opinions on the merits as well. The father of the minor defendants has now filed a second appeal and he is met by the same objection before us.
4. In the trial Court the position of a minor plaintiff is slightly different from that of a minor defendant, inasmuch as under O 32 a suit can be filed through a next friend without any formal appointment by the Court, but a guardian ad litem of a minor defendant has to be appointed by the Court itself, and such guardian once appointed cannot be removed unless he desires to retire, or does not do his duty, or there is other sufficient ground for permitting him to retire (O. 32, Rule 11(1). It has, however, been held in a series of cases of this Court that the guardian ad litem appointed for a minor defendant continues to represent him until he baa been removed by an order of the Court. In the words of Straight, J., in Jwala Dei v. Pirbhu [1891] 14 A11. 35, ‘
where a person is appointed as the guardian of a minor for the purposes of a lis, that means of such lis is all its remifications and so long as it subsists, whether in the Court of first instance or in the Court of appeal, unless he takes the necessary steps to have himself discharged from that position which his been put upon him by the Court.
5. This view has been accepted in subsequent cases:
6. Bawan Das v. Bishnath [1899] A.W.N. 203, In the matter of the application of Sukhdeo Rai [1905] 2 A.L.J. 489, Shambhu v. Kanhaiya A.I.R. 1922 All. 382, Bhagelu v. Dharma A.I.R. 1924 All. 79.
7. It must therefore now be taken as settled law that even for purposes of appeal it is only the guardian ad litem appointed by the trial Court who can represent the minor, and that so long as he has not died, retired or been removed, no one else can be allowed to represent the minors in appeal. A suggestion was thrown out in the case of Bawan Das v. Bishnath [1899] A.W.N. 203, that the proper remedy would be to apply to the lower appellate Court for an order removing the guardian ad litem from his office and, if such an order were obtained, to present a fresh appeal together with an application under Section 5, Lina. Act. That of course was an observation not necessary for the purposes of that case.
8. After the passing of a decree the lis in at least the trial Court comes to an end for the time being, and as the rules under Order 32 do not expressly apply to execution proceedings, it would seem that the Court becomes functus officio for the purpose of removing the guardian and appointing a fresh guardian in his place: Fani Bhusan v. Surendra Nath Das A.I.R. 1921 Cal. 476. It would therefore be both inappropriate and inconvenient to apply to the trial Court to appoint a fresh guardian in order that an appeal may be preferred by him. In cases where the guardian ad litem dies after the decree, the practice of this Court is to permit an appeal to be preferred by another next friend or guardian along with an application praying for his formal appointment. It seems to us that if the allegation is that the guardian is either not doing his duty or is negligent or has colluded, or if there is other sufficient ground for his removal, any other person interested in the welfare of the minor may prefer an appeal accompanied by an application for the removal of the guardian and the appointment of himself in his place. It is very doubtful if without any such appeal pending before the appellate Court it would be seized of the case and would have jurisdiction to order the removal of the previously appointed guardian ad litem. A mere application for such a purpose without an appeal may therefore be defective. On the other hand, even if there is some defect in the presentation of the appeal by a person who has not yet been formally appointed as guardian, that defect can be easily cured under the provisions of Section 153, Civil P. C, to which there was no corresponding section in the old Code which was in force at the time when Bawan Das’s case was decided. We think it would be simplifying procedure if an appeal were allowed to be preferred within the time allowed by law by another next friend, coupled with an application for the removal of the guardian ad litem on any of the grounds mentioned in Order 32, Rule 1; and if such an application is ultimately granted, the appeal may be treated as having been properly filed.
9. In the present case, however, there is this difficulty in the way of the appellant, that no formal application for the removal of the guardian ad litem was preferred, and there was no suggestion that there was any ground for his removal as contemplated by Order 32, Rule 11. Nor does it appear that the guardian ad litem had any notice to oppose an application for his removal. At best it can be suggested that the guardian ad litem was not ready to prefer an appeal, possibly because he thought that the appeal would have no force. The learned District Judge could not have entertained such an oral application at the late stage at which the suggestion came without an opportunity having been given to the guardian ad litem to meet it. We therefore think that, although it would not be correct to say that he had no jurisdiction to entertain any such application, he was perfectly justified in refusing to entertain it as it was made at a very late stage in the case and gave no grounds which would justify the removal of the guardian.
10. In this view of the matter it is not necessary to go into the other questions which have been raised in this appeal. We accordingly dismiss this appeal with costs.
11. We have taken into consideration the circumstances under which the appeal was preferred in the lower appellate Court and in this Court, as well as the grounds of decision, and we think that on the whole it would be just and proper to direct that the parties should bear their own costs in both these Courts.