ORDER
Hari Lal Agrawal, J.
1. This is an application under Section 115 of the Code of Civil Procedure by the defendants. Out of them, three, namely, petitioners Nos. 9, 10 and 11 (defendants Nos. 10, 11, and 12) are minors. The petitioners challenge by this application an adverse order passed by the courts below refusing to set aside an ex parte decree dated 28-11-1968 in Title Suit No. 75 of 1964 instituted by the plaintiffs for redemption of a usufructuary mortgage bond dated 2-2-1913 in respect of 17 Kathas 14 dhurs of agricultural land, A number of defendants were impleaded in the suit, out of which four were minors. As already stated above, three of the petitioners are said to be still minors, but one Kant Rai (defendant No. 15) who was minor in the trial Court, has since admittedly attained majority. The minor defendants were shown under the guardianship of their respective fathers who were their natural guardians. The natural guardians of the aforesaid minor defendants, however, did not enter appearance, on behalf of the minors, but still, the trial Court did not appoint any guardian ad litem. The suit was contested by some of the major defendants, but afterwards they left taking interest in the suit and ultimately the suit was taken up for hearing ex parte on 28-11-1968 end was decreed against all the defendants, including the minor ones.
2. On 11-1-1969, an application purporting to be under Order 9, Rule 13 read with Section 151 of the Code of Civil Procedure was filed on behalf of all the defendants, including the minors, for setting aside the ex parte decree, giving some explanation for not taking step on the relevant date. No other point was raised in the trial Court.
3. The trial Court did not accept their case that there was any sufficient cause for setting aside the ex parte decree. An appeal was taken by the petitioners and in the lower appellate court a further plea was raised on their behalf that the ex parte decree must be set aside as no guardian ad litem of the minor defendants had been appointed and, therefore, the suit could not have been taken up for ex parte hearing. The Court of Appeal below has not discussed this aspect of the petitioners’ case in any detail and dismissed the appeal on an observation that inasmuch as the natural guardian of the minor defendants were already there, it could not be held that the minors were not properly represented and further that the plea was not taken in the trial Court.
4. In this Court Mr. Shreenath Singh appearing on behalf of the petitioner, on reference to the various provisions of Order 32 of the Code of Civil Procedure, advanced an argument that the ex parte decree as such must be set aside. Learned counsel, in particular, referred to the provisions contained in Rules 3 and 5 of Order 32. Rule 3 (1) lays down that 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. Sub-rule (2) of Rule 5 of this Order prescribes that every order made in a suit or on any application, before the Court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged. Learned counsel, on these provisions, contended that inasmuch as the trial court failed to appoint a proper person to be the guardian of the minor defendants for the suit, the ex parte decree passed by the trial Court must be set aside.
5. There is an apparent fallacy in the ingenious argument of the learned counsel for the petitioners. It is, no doubt, true that the trial court failed to follow the mandatory provision contained in Rule 3 of Order 32 of the Code of Civil Procedure and posted the suit for ex parte hearing, so much so that it passed an ex parte decree against the minor defendants as well, the decree as such cannot be set aside. Order 32, Rule 5 (2) has no application to the facts of the present case, as what is intended to be discharged in sub-rule (2) of Rule 5 is only an interlocutory order while the suit is still pending and does not in term apply to a decree. Mr. Shreenath Singh, however, placed reliance upon the case of Dodda Lakkanna v. Lakshmidevamma (AIR 1959 Mys 28) where a learned single Judge has made certain observations to support the contention of the learned counsel. This authority, however, is of no assistance to him and is entirely distinguishable inasmuch as in that case the decree was against a person of unsound mind who was practically the lone defendant in that case. In this connection reference can be usefully made to two decisions of this Court and one decision of the Supreme Court itself.
6. A Bench of this Court in Ramchandar Singh v. B. Gopi Krishna Dass (AIR 1957 Pat 260) held that if ,a minor is not effectively represented in a suit or in an execution proceeding, such a defect is not one of mere form, but of substance and it goes to the root of the jurisdiction of the Court, and, therefore, such a minor in the eye of law is not a party to such a suit, or an execution proceeding, and as such, no decree made against him in such a suit will bind him or his estate at all. This decision was followed by another Bench decision of this Court in the case of Ramchandra Pd. Singh v. Rampunit Singh (AIR 1968 Pat 12), It was again reiterated that the plaintiff No. 1, who was not at all represented by a proper guardian ad litem, the decree and sale so far as he was concerned were void and did not affect his share. It cannot be doubted that the provisions of Order 32, Rule 3 of the Code of Civil Procedure are mandatory in nature and their disobedience leads to the consequence that there is no proper party to the suit in the eye of law and the minor is not a party to the suit or the proceeding, notwithstanding that his name appears on the record and, consequently, the jurisdiction of the Court to proceed against such a minor will be ousted and the Court will have no jurisdiction to render any judgment or pass any other order against such a minor.
7. The Supreme Court in the case of Ramchandra Arya v. Man Singh (AIR 1968 SC 954), where a decree was passed against a lunatic without appointment of a guardian, and in execution of which his properties were sold, held that the decree against him was a nullity and the sale held in execution of that decree was void ab initio.
8. From the view of law laid down in the above authorities, it manifestly follows that a minor not properly represented in a suit and against whom an ex parte decree has been passed, being not bound by the same, he being not a person properly made a defendant, cannot apply for setting aside the decree under Order 9, Rule 13 of the Code of Civil Procedure as setting aside a decree presupposes that the decree exists against the defendant. Such a decree being a nullity and not binding upon him, he is not required to get it set aside.
9. No other argument was advanced on behalf of the petitioners, and the only point having been found to be of no avail, this application must fail and it is, accordingly, dismissed. In the circumstances, however, I shall direct the parties to bear their own costs.