Raj Kishore Prasad, J.:— On this appeal, by defendants 3 and 4, from a judgment of reversal, of the Subordinate Judge, Ist Court, Patna, giving a declaration that the auction sale of the property of the plaintiff was void, the principal question of law, which has been raised on the part of the appellants, is: Whether in the eye of law, a minor can be said to be a party to an execution proceeding, when a guardian-ad-litem has been appointed by the execution Court for him, without complying with the provisions of sub-r. (4) of R. 3 of O. 32 of the CPC, 1908?

2. The facts leading to the present appeal may shortly be stated as follows:

An ex parte decree for money was obtained by defendant 1 on the 9th May, 1930, against Balkrishna Das, and others, in a Small Cause Court suit, instituted on the 8th March, 1930, in the Court of Small Causes at Calcutta. This decree was put into execution on the 18th September, 1930. During the pendency of the execution case, Balkrishna Das, one of the judgment-deb-tors, died on the 20th November, 1930, and, in his place, his son Gopi Krishna Das, the now-plaintiff, who was then a minor, was substituted on the 2nd December, 1930, under the guardianship of his mother.

3. On the finding of the Court of appeal below, no notice under O. 21, R. 22(1) of the Code, was issued to the now-plaintiff nor, any reason was assigned for dispensing with it, as required by sub-r. (2) of R. 22 of O. 21 of the Code, nor, any notice under O. 32, R. 3(4) was served either on the minor, who is now the plaintiff, or, on his mother, his proposed guardian. A pleader guardian-ad-litem was, however, appointed for the now-plaintiff by the execution Court. The guardian-ad-litem filed an objection to the execution of the decree, which, however, was rejected on the 30th June, 1931. No notice under O. 21, R. 66 of the CPC, was issued to the minor, that is, the plaintiff, but one such notice was issued to the pleader guardian-ad-litem.

4. On the 17th November, 1931, the four annas share, including the two annas share of the plaintiff, in village Pancholwa, was sold, and, purchased by one Madanlal, the father of defendants 5 to 7. Delivery of possession was given to the auction-purchaser on the 7th November, 1932. The auction-purchaser, thereafter, sold the auction purchased property in dispute, on the 26th February 1943, to defendants 3 and 4, who are the appellants before this Court.

5. The plaintiff, on attaining majority on the 4th November, 1943, brought the present suit on the 13th September, 1944, for a declaration that the sale of the plaintiff's share was without jurisdiction, void and not binding on him, and, therefore, he should be put in possession of the said property.

6. The first Court dismissed the plaintiff's suit, but, on appeal by him, the learned Subordinate Judge, who heard the appeal, reversed the judgment and decree of the first Court, and decreed the plaintiff's suit.

7. The learned Judge of the Court of appeal below held that there was no fraud in the conduct of the suit, and, therefore, the decree was not void and fraudulent. He, however, held that the auction sale of the plaintiff's share was void, because of absence of a notice under O. 21. R. 22 of the CPC. He further held that the appointment of a pleader guardian-ad-litem, without any notice under O. 32, R. 3(4) either on the minor, or his natural guardian was invalid in law, and, as such, the guardian-ad-litem could not be said to have represented the minor in the execution proceeding. Defendants 3 and 4, therefore, came up in second appeal to this Court, which has been referred to a Division Bench by B.P, Jamuar, J.

8. Mr. Ugra Singh, on the part of the appellants, has put forward several objections to the decree appealed from, and, one such objection is, so runs Ms. argument, that, no doubt, no notice under O. 32, R. 3(4) of the Code was, on the finding of the Court of appeal below, served either on the minor, or his natural guardian, the mother, but because a pleader guardian-ad-litem was appointed by the Court to represent the minor in the execution proceeding, the now-plaintiff was fully represented by the said pleader guardian-ad-litem, and, as such, in the absence of any allegation of any gross negligence or fraud on his part, the sale was perfectly valid. He further contended that because the pleader guardian-ad-litem appeared in the execution proceeding, and filed objection, and the notice under O. 21, R. 66 of the Code was also served on him, the now-plaintiff was estopped from raising the question of his non-representation in the execution proceeding, and, consequently from challenging the sale as being without jurisdiction.

9. In support of his contention. Mr. Singh strongly relied on Pande Satdeo Narain v. Ramayan Tewari, AIR 1923 Pat 242 (2) : ILR 2 Pat 335 (A), which he submitted had been followed by this Court in subsequent cases also in Pritam Ram v. Dharo Rai, AIR 1924 Pat 772 (B); Punyabrata Das v. Monmohan Ray, AIR 1934 Pat 427 (C); Nathu Mander v. Suraj Narain Jha, AIR 1948 Pat 415 : ILR 27 Pat 164 (D) and K.B Lall v. K.N Ojha*, AIR 1954 Pat 349 (E). He, therefore, submitted that the principles laid down in AIR 1923 Pat 242 (2) : ILR 2 Pat 335 (A) should govern the present case, and, accordingly, it should be held that the now-plaintiff was fully represented by the pleader guardian-ad-litem, and, therefore, the sale was perfectly valid.

10. Mr. Baidyanath Jha, for the respondents, however, contested the argument of Mr. Singh, and submitted that the present case was governed by the principles laid down in the earlier Bench decisions of this Court in Mohan Krishna Dar v. Har Prasad, AIR 1917 Pat 161 (F); Rajendra Prasad v. Prabodh Chandra, AIR 1921 Pat 25 : 6 Pat LJ 82 : 2 Pat LT 116 (G); Ramprit Prasad v. Thakur Saran, AIR 1921 Pat 293 (1) : 2 Pat LT 617 (H) and Rani Chattra Kumari Debi v. Panda Radhamohan Singari, AIR 1922 Pat 291 : 3 Pat LT 451 (I). To the same effect, he submitted, was also the subsequent Bench decision of this Court in Baraik Ram v. Chowra Uraon, AIR 1938 Pat 97 : ILR 16 Pat 632 (J). He, therefore, submitted that on the ratio of these cases, it must be held that the now-plaintiff was not legally represented in the execution proceeding, and, therefore, the sale of his interest was a nullity.

11. One of the elementary rules of natural justice is that no decree, or order finally deciding a question between parties should be made absolute ex parte, without previous notice to the party affected by it. In the well known words of Lord Ellenborough, C.J in Buchanan v. Rucker, (1807) 1 Camp 63 (K):’

“It was contrary to the first principles of reason and justice that in either Civil or Criminal Proceedings a man should be condemned before he was heard, and further that if such a practice were passed, it was an evil practice, and could not be sanctioned.”

12. It is beyond dispute, and, it is a cardinal principle, that a party has a right to appear and plead his cause on all occasions when that cause 1 comes on for hearing, and that a party should not be deprived of that right, and in fact the Court has no option to refuse that right, unless the Code of Civil Procedure deprives him of it. No forms or procedure should, therefore, ever be permitted to exclude the presentation of a litigant's defence. It is, therefore, manifestly clear that a Court has no jurisdiction to sell the property of persons, who were not parties to the proceedings, or properly represented on the record. As against such persons, decrees and sales purporting to be made could be a nullity, and might be disregarded without any proceeding to set them aside.

13. If, therefore, 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 order passed, or decree made against him in such a suit, and no proceeding taken, or sale held in execution proceeding against him ex parte in his absence will bind him or his estate at all.

14. The main question, therefore, which emerges, on the arguments presented by the learned counsel for the parties, for decision, is: What is the effect of non-compliance of the provisions of sub-r. (4) of R. 3 of O. 32 of the Code, on the minor, the now-plaintiff, and, on the appointment of a guardian-ad-litem for him?

15. Order 32, R. 3 of the Code, may be quoted in extenso here. It reads thus:

“Order 32

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3. (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.

(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 appointed.

(4) No order shall be made on any application under this rule except upon notice to the minor and 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 other natural guardian of the minor, or, where there is no father 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.

(5) A person appointed under sub-r. (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue, as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.”

16. The crucial point, therefore, which is the crux of the whole matter, is: What is the true effect of sub-rule (4) of R. 3 of O. 32 of the Code? or, in other words, whether it is mandatory, and, its disregard would make the proceeding against the minor a nullity?

17. In construing the provisions of the Code of Civil Procedure, it would be well to remember what his Lordship Mr. Justice Bose, of the Supreme Court said in Sangram Singh v. 1. Election Tribunal, Kotah, (1955) 2 SCR 1 : (S) (AIR 1955 SC 425) (L). His Lordship observed:

“Now a Code of Procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”

18. Equally important to remember is the well-known rule of interpretation of statute that it is elementary that the primary duty of a Court is to give effect to the intention of the legislature, as expressed in the words used by it and no outside consideration can be called in aid to find that intention. In order to determine whether the provisions of sub-r. (4) of R. 3 of O. 32 of the Code, are mandatory, or directory, it is true the use of the word “shall” does not conclude the matter; and, there is no universal rule to aid in determining whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is, therefore, the duty of the Court to try to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute to be construed. The Court has primarily to look at the language employed in the section and give effect to it: H.N Rishbud v. State of Delhi, (S) AIR 1955 SC 196 (M).

19. Keeping the above principle in view, I would now proceed to construe and ascertain the precise meaning of sub-r. (4) of R. 3 of O. 32 of the Code.

20. It is not disputed, and, it could not be I disputed, that the provisions of O. 32 of the Code apply to an execution proceeding also.

21. The scheme of R. 3 of O. 32 of the Code is this: Sub-r. (1) requires that in the case of a minor the Court shall appoint a proper person to be guardian for the minor. Sub-rule (2) provides that for this purpose an application has to be made either by the plaintiff or in the name and on behalf of the minor. Sub-rule (3) requires that such an application should be supported by an affidavit, verifying the fact that the proposed guardian has no adverse interest against the minor, and, that he is a fit person to be so appointed. Sub rule (4) is very important for our purpose.

22. It enjoins on the Court that no order shall be made on any such application under R. 3, appointing any person as guardian of a minor, except upon notice to the minor, and, to the father, or other natural guardian of the minor, in the absence of any guardian appointed or ‘declared by an authority competent to do in that behalf. Upon such notice upon the minor and his natural guardian, the Court is required to hear objections, if any, which may be made on behalf of any person served with notice under sub-r. (4), Sub-rule (5) lays down that such a guardian appointed under sub-rule (1) shall continue as such in all proceedings.

23. Sub-rules (3) and (4) of R. 4 of O. 32 are also relevant Sub-rule (3) of R. 4 provides that no person shall without his consent be appointed guardian for the suit. Sub-rule (4) of R. 4 says that where there is no other person, obviously meaning the persons mentioned in sub-r. (4) of R. 3, fit and willing to act as guardian, then only the Court is empowered to appoint any of its officers to be such guardian.

24. We, therefore, find that sub-r. (4) of R. 3 of O. 32 of the Code, requires two things to be done; first, a notice to the minor and his proposed: guardian; and, second, upon service of such notice to hear objections, if any, that may be urged on behalf of either, or both of them, who have been served with such a notice. It is only after compliance with the provisions of sub-r. (4) of R. 3 of O. 32, and not otherwise, that the Court gets, jurisdiction to appoint a guardian for the minor under sub-r. (1) of R. 3 of O. 32.

25. It is in the light of this scheme of the Code that the scope of a provision like sub-r. (4) of R. 3 of O. 32, of the Code has to be judged. When the Legislature has enacted in emphatic terms-such a provision it is clear that it had a definite policy or object behind it. To appreciate that policy or object, it is relevant to observe that O. 32 has been specially enacted to protect the interest of minors, and, to see that they are represented in the suit or proceeding by a person; who is qualified to act as such. In order to: achieve this object, the Legislature laid down in; O. 32, R. 3(4) that the wishes of the minor must be obtained before any guardian for him was appointed by the Court.

26. The minor's wishes could be ascertained only by a notice to the minor and his guardian. The object of O. 32, therefore, will be defeated, if without any notice to the minor and his guardian and without ascertaining the minor's Wishes, a guardian is appointed by the Court for him, and, a guardian is thus thrust upon him. Having regard, therefore, to the peremptory language of sub-r. (4) of R. 3 of O. 32 of the Code as well as to the policy and object underlying it, it is reasonably clear that the said provision must be taken to be mandatory.

27. Sub-rule (4) of R. 3 of O. 32 provides that I no order shall be made on an application fort appointment of a guardian for a minor under sub-r. (1) of R. 3 of O. 32, except upon notice to the minor and his guardian mentioned therein. Therefore, there can be no degree of compliance with it so far as notice is concerned, unless such a notice is served upon the minor and his guardian. That is also conclusive to show that the provision is mandatory.

28. On the scheme of R. 3 of O. 32, and, on, the plain language of sub-r. (4) of R. 3, there is, therefore, no doubt that sub-r. (4) of R. 3 of O. 32 is mandatory and imperative, and, its terms must be strictly complied with. It is a well settled general rule that an absolute enactment must be obeyed, or fulfilled exactly. A provision or a statute which is vital and goes to the root of the matter cannot be broken, and, its breach cannot be overlooked. A breach and disregard of the mandatory provision contained in sub-r. (4) of R. 3 of O. 32, therefore, will make the appointment of the guardian by the Court under sub-r. (1) of R. 3 ineffective and useless, and it will have no binding effect on the minor, and, it will not be operative against him at all.

29. I am, therefore, of opinion that both on principles of justice and on the Procedure Code itself, no guardian could be assigned, on the application of the plaintiff, unless (1) it has been proved to the satisfaction of the Court that the defendant is a minor, (ii) notices under sub-r. (4) of R. 3 of O. 32 have been duly served on the minor and his proposed guardian; and, (iii) the consent of the proposed guardian has been obtained.

30. It is thus clear enough that only after compliance with the mandatory provisions of sub-r. (4) of R. 3 and, R. 4(3) of O. 32 of the Code that a guardian appointed for such a minor will, in the eye of law, be deemed to represent completely and effectively the minor concerned. If, however, a guardian-ad-litem is appointed upon the application made by the plaintiff without any notice of such an application having been served upon the minor and on his proposed guardian as required by sub-r. (4) of R. 3 of O. 32, the order appointing a guardian-ad-litem for such a minor by the Court, no doubt, purporting to act under sub-r. (4) of R. 4 of O. 32, would be a nullity and without jurisdiction and such a guardian-ad-litem cannot legally represent the minor, so as to bind him by his acts. Such a minor will not be considered to be a party to such a proceeding, notwithstanding that his name appears on the record, and, as such, any order passed or any proceeding taken against him will be null and void.

31. The above view is fully supported by a Bench decision of this Court in AIR 1921 Pat 25 : 6 Pat LJ 82 (G), which, in my opinion is on all fours with the present case. In that case, Sir Dawson Miller, the distinguished Chief Justice of this Court, observed:

“Under the present law, however, matters stand differently, and by the express provision of O. XXXII, R. 3, Cl. (4), both the minor and his guardian must be served with the notice before any order can be made on an application under that rule. It seems to me that in the present case the order made by the learned Judge was without jurisdiction and that his order dated the 19th March should be set aside, as the minor was not served with notice and had no opportunity of appearing through a pleader on that occasion in order to express his views and wishes as to the appointment of a guardian.”

32. It is, therefore, manifest that due to the disregard of the mandatory provisions of O. 32, R. 3(4) of the Code, the now-plaintiff cannot, in the eye of law, be said to be a party to the execution proceeding, and therefore, the execution Court had no jurisdiction to sell the property of the now-plaintiff, who was no party to the proceeding, and, as against such a person, the sale is a nullity completely.

33. To this effect is also the decision of the Judicial Committee in Khiarajmal v. Daim, 32 Ind App 23 (N), in which Lord Davey observed:

“Their Lordships agree that the sales cannot be treated as void or now be evaded on the grounds of any mere irregularities of procedure in obtaining the decrees or in the execution of them. But on the other hand the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. As against such persons, the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside”.

34. This was a case not of an irregularity in the appointment of guardian-ad-litem for the minor, but, a case where on the record of the two suits, one Amir Baksh was the legal representative of Naurez and Alahnawaz was his guardian. Amirbaksh was, of course, one of the heirs of Naurez but in no other sense was his legal representative. It was not pretended that Alahnawaz was in any legal sense, or in fact, the guardian of Amirbaksh, or was ever appointed his guardian-ad-litem.

35. The Court below, however, accepted without question the statement on the record that Amirbaksh was legal representative of Naurez, and. Alahnawaz was his guardian and never applied its mind to the matter, because the two suits did not proceed in the ordinary course in which case, doubtless, the Court would have applied its mind. In one, the proceedings were cut short by the agreement for reference, and in the other, it was in effect a consent decree. Their Lordships, therefore, held that the estate of Naurez was not represented in law or in fact in either of the suits; and, the sale of his property was, therefore, without jurisdiction and null and void, and, even the share of Amirbaksh himself in his father's estate was not bound. Their Lordships observed:

“……. it is not a mere question of form, but one of substance. In coming to this conclusion their Lordships are quite sensible of the importance of upholding the title of persons who buy under a judicial sale; but in the present case the real purchaser was the judgment-creditor, who must be held to have had notice of all the facts.”

36. The ratio of the just mentioned two cases, in my opinion, governs the present case, because, here also, no doubt, a pleader guardian-ad-litem was appointed by the Court, but the mandatory provisions of sub-r. (4) of R. 3 of O. 32 of the Code, were completely disregarded. In such circumstances, it cannot be said that the appointment of pleader guardian-ad-litem was a mere irregularity in the appointment, and, as such, a question of mere form, and not of sub-stance; and, unless prejudice was shown to the minor, he will be deemed to be completely represented by such a pleader guardian-ad-litem. In a case like the present, where the mandatory provisions of sub-r. (4) of R. 3 of O. 32, are completely ignored, it cannot be said that the pleader guardian-ad-litem appointed by the Court represents the minor for any purpose whatsoever; and, therefore, the now-plaintiff must be held not to be a party to the execution proceeding at all.

37. In an earlier Bench decision of this Court, in AIR 1917 Pat 161 (F), Mullick and Atkinson, JJ., while considering the effect of appointing guardian for a minor without complying with the-provisions of sub-r. (3) of R. 4 of O. 32 of the Code, observed:

“This order is mandatory and imperative in its nature; and it is quite clear that it would amount to nothing short of want of jurisdiction in the Court to appoint such a person without his consent.”

38. Their Lordships, therefore, observed that, even though only sub-r. (3) of R. 4 of O. 32, had been violated, the minor defendants in the former suit were not “effectively represented” and, that consequently they were not parties to the suit. In my opinion, if that be the effect of non-compliance of sub-r. (3) of R. 4 of O. 32 of the Code, I do not find any reason why the same construction should not be put on sub-r. (4) of R. 3 of O. 32, of the Code. The true effect of non-compliance of sub-r. (4) of R. 3 of O. 32, therefore, is that it would amount to want of jurisdiction in the Court to appoint any person as guardian of such a minor.

39. The other Bench decisions of this Court, which also support the view that if a minor has not been properly and effectively represented, the proceeding against him is a nullity, and, does not affect his interest, and, which has also been relied upon by the respondents, are: AIR 1921 Pat 293 (1) (H); AIR 1922 Pat 291 (I) and AIR 1938 Pat 97 (J).

40. The judgment of the Judicial Committee in Mt. Bibi Walian v. Banke Behari Pershad Singh, 30 Ind App 182 (O) has given rise to a judicial conflict on the true scope of this decision, due to which, relying on this case, it has been held that a defect in the appointment of a guardian-ad-litem for a minor is only an irregularity, and, unless prejudice is shown to the minor, the minor would be deemed to be completely represented by such a guardian-ad-litem. Following this case, therefore, it has been held that mere omission to obtain the consent of the person, whom it is proposed to appoint as the guardian, is not a defect, which is necessarily fatal to the proceeding, and, that a defect in complying with the rules laid down upon the subject of appointing guardians is not necessarily fatal to the proceeding, unless it is shown that the minor was prejudiced by the defect, and, where there was no sort of prejudice whatever the Court has declined to interfere.

41. The earliest Bench decision of this Court on this question is the case of AIR 1923 Pat 242 (2) : ILR 2 Pat 335 (A), on which much reliance has been placed by the appellants. Soon after about a month only, the case of Suraj Deo Narain v. Sarjug Prasad, 2 Pat LJ 390 : (AIR 1917 Pat 657) (P) was decided laying down the same rule, but in this case, however, there is no mention of it.

42. The first case, however, was followed by this Court in the subsequent cases, which have been mentioned earlier, and which I will deal with hereafter.

43. It is essential, however, at first to know the foundation of the decision of the Privy Council in Walian's case, which is the basis of all these cases.

44. Walian's case, 30 Ind App 182 (O) was decided on the basis of the Code of Civil Procedure of 1882, and, their Lordships of the Privy Council had to construe S. 443 of that Code. Section 443 may, therefore, be reproduced here:

“443. Where the defendant to a suit 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, to put in the defence for such minor, and generally to act on his behalf in the conduct of the case.

45. Where an authority competent in this behalf has appointed or declared a guardian or guardians of the person or property, or both, of the minor, the Court shall appoint him or one of them, as the case may be, to be the guardian for the suit under this section, unless it considers, for reasons to be recorded by it that some other person ought to be so appointed.”

46. The first part of S. 443 corresponds to the present O. 32, R. 3(1), whereas its second part corresponds to the present O. 32, R. 4(2). Present O. 32, R. 3, Cls. (2) and (3) correspond to the first part of S. 456 of the old Code. Order 32, R. 4(1) corresponds to S. 445, and, O. 32, R. 4, Cl. (4) corresponds to the second part of S. 456.

47. We, therefore, find on a reference to Ss. 443, 445 and 456, and the other sections mentioned in Chapter XXXI, which deals with suits by and against minors and persons of unsound mind, and which contains Ss. 440 to 464 of the Code of 1882, that therein there was no provision similar to either O. 32, R. 3(4) or O. 32, R. 4(3). They are new provisions, which were introduced for the first time in the Code of 1908.

48. Under S. 443, therefore, no notice either to the minor or to his guardian, as contemplated now by O. 32, R. 3(4), nor, any notice as now required under O. 32, R. 4(3), was necessary before appointing a guardian for any minor. Section 443 only required that where the defendant to a suit was a minor, the Court, on being satisfied of the fact of his minority, had to appoint a proper person to be guardian for the suit for such minor, and generally to act on his behalf in the conduct of the case. We, therefore, find that in the Code of 1882, there was no provision either for notice to the minor, or his guardian, or to obtain the consent of the proposed guardian, before appointing him guardian for the minor. In such circumstances, Walian's case (O) cannot be of any guide in construing O. 32, R. 3(4) or even O. 32, R. 4(3) of the present Code.

49. Another reason why Walian's case (O) cannot apply to the present case is that in that case the only defect was absence of a formal order appointing guardian. Sir Arthur Wilson, who delivered the opinion of the Board, in clear terms, pointed out the defences in that proceeding, and, observed:

“The present plaintiffs were substantially sued in the former suit, and the alleged fraud has been negatived. It appears to their Lordships that they were effectively represented in that suit by their mother, and with the sanction of the Court; and for the reasons given by the First Court their Lordships attach no importance to the certificate of Durga Dutt. There is nothing to suggest that their interests were not duly protected. ‘The only defects which can be pointed out are that no formal order appointing the mother of the now plaintiffs to be their guardian-ad-litem is shewn to have been drawn up’; and that it is not definitely shewn that any attempt was made to serve the summons in the former suit upon the infants personally or upon their mother, a purdahnashin lady, before serving it upon Gajadhur the only adult male member and the karta of the family. ‘It has not been shown that the alleged irregularities caused any prejudice to the jpresent plaintiffs’; nor indeed could there will be any, since it has been found that the original debt was one for which the present plaintiffs were liable.”

50. In these circumstances, their Lordships held that the above defects were mere defects of procedure, which were at most irregularities which, under Section 578 of the CPC of 1882 which corresponds to S. 99 of the present Code, would not have furnished ground for reversing the proceedings in the former suit, if they had been raised upon appeal in that suit. They, therefore, approved the Full Bench decision of the Calcutta High Court in Suresh Chunder Wum Chowdhry v. Jugut Chunder Deb, ILR 14 Cal 204 (Q), which was approved by the Privy Council earlier in Hari Saran Moitra v. Bhubaneswari Debi, 15 Ind App 195 (R).

51. Walian's case (O) is the sole basis, and, the foundation of the decision in AIR 1923 Pat 242 (2) (A), on which greatest reliance was placed by the appellants. In that case, P.R Das, J. with whom Adami, J. agreed, made some significant observations which may usefully be reproduced here:

“……. the mere fact that the Court has disobeyed any particular provision of the statute is not sufficient to establish that there was no jurisdiction in the Court to render judgment in the case. ‘But where the disobedience leads to the result that, as a consequence of the disobedience, there is no proper party to the suit, the case is different’. It is one thing to say that the Court has not adopted the appropriate procedure to require the attendance of a party before it; it is another and a different thing to say that, as a result of the disobedience of any particular provision of the statute, there is no proper party to a suit.

The Court has no jurisdiction to render judgment against one who is not a party to the suit, though it has jurisdiction to render judgment against one who is a party to the suit but who has not been brought before it by reason of the failure on the part of the Court to follow the particular procedure laid down in the Code. The one affects the existence of the jurisdiction of the Court; the other affects the exercise of it. To take a simple case, a minor is not a party to the suit, unless he is represented in the record of the suit by a guardian competent to act as such.

Where the record of the suit itself shows that the minor is wholly unrepresented, or that he is represented by a guardian disqualified, from acting as such guardian under the express provision of the statute, the result is that the minor is not properly a party to the suit, and a judgment rendered against the minor is without jurisdiction and null and void'. But where he is properly a party to the suit, and he is properly a party if he is represented in the record by guardian not disqualified from acting, the jurisdiction of the Court to try and determine the cause as against the minor is complete, and such jurisdiction will not be ousted on proof that the Court did not follow the appropriate procedure for the appointment of the guardian.

In my opinion, it is the record of the suit that must decide the question of jurisdiction: and where the record, on the face of it shows that the minor was properly a party to the suit, the judgment rendered in such a suit will not be declared a nullity in a collateral proceeding brought to impeach its validity; though it may be set aside if it is shown that the defect or the irregularity in the proceedings affected the merits of the case between the parties.”

52. It will appear from the above observations of P.R Das, J., that his Lordship himself was of the view that where the disobedience of any particular provision of the statute leads to this result that, as a consequence of the disobedience, there is no proper party to the suit, the case is different. His Lordship further observed that if a minor is represented by a guardian disqualified from acting as such guardian, under the express provision of the statute the result is that the minor is not a party to the suit, and the judgment rendered against the miner is without jurisdiction and null and void.

53. In my opinion, from this case also, it appears that the test, which their Lordships in the just mentioned case put before themselves for judging whether a minor was represented in a suit or not was whether the minor was represented by a ‘qualified guardian, or by a guardian disqualified from acting as such guardian under the express provision of the statute.

54. In my opinion, a guardian, appointed for a minor, in utter disregard, and in breach, of the provisions of O. 32, R. 3(4), without giving information to the minor or his guardian, and ascertaining the minor's wishes, cannot be said to be a guardian qualified to act for such a minor, because such an appointment would be against the express provisions of the Code. In my opinion, therefore, the case of Pande Satdeo Narain (supra) (A) has no application to the present case. In this case, their Lordships accepted the position that there was a violation of the provision of O. 32, R. 3(4) of the Cole.

55. It appears that their Lordships decided the case on the footing that non-compliance with the provisions of O. 32, R. 3 of the Code were mere defects in the proceedings of the suit. We are, however, unable to accept as correct the reasoning given by their Lordships for holding that violation of the provision of O. 32, R. 4(3) of the Code or O. 32, R. 3(4) of the Code amounted to mere defects in the proceedings of the suit, and therefore, the decree rendered by the Court in such circumstances ought not to be regarded as null and void.

56. The earlier Bench decisions of this Court in AIR 1921 Pat 25 (G); AIR 1917 Pat 161 (P) and AIR 1922 Pat 291 (I), which held the contrary views, were not even mentioned, much less considered, therein. In these circumstances, this case cannot be considered to be an authority here, and, therefore, I am unable to follow it, and, hold that breach of sub-r. (4) of R. 3, and, sub-r. (3) of R. 4 of O. 32 of the Code, is a mere irregularity, and, that it does not go to the root of the jurisdiction of the Court, and that it does not make the order appointing a guardian without jurisdiction.

57. Walian's case (O) and Pande Satdeo Narain's case (A) were both considered by a Full Bench of the Calcutta High Court in Satis Chandra v. Hashem Ali, AIR 1927 Cal 488 : ILR 54 Cal 450 (S). Rankin, C.J, the distinguished Chief Justice, who delivered the main judgment of the Full Bench, criticised the above two cases, and, referred to 32 Ind App 23 (N), in the following terms:

“I do not think it necessary to decide the question raised by the long and learned judgment of Mr. Justice Das in AIR 1923 Pat 242 (2) : ILR 2 Pat 335 (A), where he advances the theory that if no guardian is appointed or if a person who is not competent under the law to be the guardian is appointed for a minor, then the proceedings in the suit are null and void; but that if a person otherwise competent is appointed without his consent under the new Code the proceedings in the suit are irregular and are not necessarily void. That view of Mr. Justice Das is based really upon an interpretation of the case in the Privy Council 30 Ind App 182 (O).

I am not satisfied that the learned Judge's interpretation of the Privy Council judgment is correct. I cannot read the Privy Council judgment except on the basis that the only defect which they under the old Code had to consider was the fact that while the Court had appointed a guardian a formal order to that effect had not been made at the time. It has been pointed out to us that in the course of the case the guardian did not contest the suit and that the decree war, ex parte. That may very well be. Guardians who are validly appointed have good reasons sometimes for not contesting the claim. The Privy Council was satisfied that in spite of that fact the interest of the minor had been effectively protected by the mother as the guardian and it was on that ground alone that the Privy Council held that the suit and the decree were not void.

The most that can be said with regard to the judgment of Lord Davey in 32 Ind App 23 (N) is that it is not quite clear with regard to certain expressions with reference to the particular case of the minor Amirbaksh whether their Lordships were addressing themselves to the circumstances that the guardian had not been appointed or to the circumstance that the individual share of Amirbaksh was not really before the Court at all. I think myself that it was to the former. In my judgment there is, however, a passage in that case which Mr. Justice Das' judgment renders it desirable to bring into prominence. The passage is at page 312 of ILR 32 Cal 296 (N):

“Their Lordships agree that the sales cannot be treated as void or now be avoided on the grounds of any mere irregularities of procedure in obtaining the decrees or in the execution of them. But on the other hand the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record”.

I only desire on this matter to say that I am not as at present advised prepared to assent to the proposition that while a decree will be void if no guardian is appointed or if the guardian is not a competent person, some different consequence will result Where a person is appointed who never consented to act at all—the most useless of all appointments.”

58. No doubt, the above observations of his Lordship, Rankin, C.J, were mere obiter, but I am in respectful agreement with the same. I cannot persuade myself to assent to the proposition that a guardian appointed, in complete violation, and in utter disregard of, and, without complying with, the mandatory provisions of sub-r. (4) of R. 3 of O. 32 of the Code, is a competent person to represent the minor; on the other hand, in my judgment, he is entirely disqualified from acting as such, because the wishes of the minor have not been obtained. Such a breach is not a mere irregularity; it is not a mere form, but it is of substance, and it goes to the root of the jurisdiction of the Court, and it makes its order appointing such a guardian null and void.

59. I may now notice here briefly the cases, which have been relied upon by the appellants, and, which have followed AIR 1923 Pat 242 (2) : ILR 2 Pat 335 (A), which was decided by P.R Das and Admi, JJ.

60. The first case to follow it is a Bench decision of this Court in AIR 1924 Pat 772 (B). This case was decided by P.R Das and Ross, JJ. In this case, notices were served on the minors and their father. As the father did not appear, the Court without any further notice to the minors appointed a pleader guardian-ad-litem to represent them. Ross, J. who delivered the judgment of the Court, and, with whom Das, J. agreed, followed the earlier case of Pande Satdeo Narain (A), to which Das, J. was a party, and, held that the defect was a mere irregularity. The earlier Bench decision of this Court in AIR 1917 Pat 161 (F), which took a contrary view on the point, was not brought to their Lordships' notice.

61. The second case is of AIR 1934 Pat 427 (C), decided by Courtney Terrell, C.J, and Varma, J. In this case, a pleader guardian-ad-litem was appointed without notice to the minor himself. The only non-compliance, therefore, was of O. 32, R. 4(3). Their Lordships followed 30 Ind App 182 (O) and AIR 1923 Pat 242 (2) (A) which followed it, without questioning the correctness of the iatter case and without ascertaining the basis of the former case. Courtney Terrell, C.J with whom Varma, J. agreed, held that such an omission was an irregularity, and, that such an irregularity cannot be taken advantage of unless positive prejudice to the minor was shewn. In this case also the earlier decision in Mohan Krishna Dar (F) (supra) was not referred to.

62. The third case is of Ram Narain Sah Paran Munda v. Santosh Mahato. AIR 1942 Pat 372 (T) decided by a single Judge of this Court, Agarwala, J., as he then was. His Lordship found that no prejudice had been caused to the minors, and, that their mother was declared to be their guardian-ad-litem, although the proper steps for her appointment as guardian-ad-litem were not observed. His Lordship followed Walian's case (O) and Pande Satdeo Narain's case (A) & held that as no prejudice had been caused nothing could be done. Here also, his Lordship did not refer to the earlier Bench decision of this Court in Mohan Krishna Dar (F) (Supra).

63. The fourth case is of Madhusudan v. Jogendra*, AIR 1945 Pat 133 : ILR 23 Pat 640 (U) decided by Fazl Ali, C.J, as he then was, and Manohar Lall, J. In this case, notices and summonses were both properly served on the minor and his mother guardian. The only defect pointed out was that there was no formal order appointing the mother of the minor as the guardian to act for him and to represent him. In such circumstances, their Lordships, following the cases of Pande Satdeo Narain, AIR 1923 Pat 242 (2) (A) and Padarath Mahton v. Hitan Singh, AIR 1924 Pat 773 (V) and, distinguishing the cases of AIR 1922 Pat 291 (I) and AIR 1938 Pat 97 : ILR 16 Pat 632 (J) held that the decree as such against the minor was not nullity.

64. The fifth case is of AIR 1948 Pat 415 (D) decided by Agarwala, C.J, and Meredith, J. In this case, a guardian-ad-litem was appointed, but he was not served with notices of the execution.

65. The minors, however, were represented by their uncle who, on his own behalf and on behalf of his minor nephews appeared and applied to have the sale set aside, but it was dismissed. The only defect pointed out was that no order was obtained from the Court for the removal of the guardian-ad-litem and for appointment of the uncle as guardian of the minors. Their Lordships following Walian's case (O), and, the above mentioned cases, held that as the interest of the minors was effectively represented, and no prejudice had been caused to them, the above defect was not sufficient to invalidate the sale.

66. The sixth and the last case, relied upon, is of AIR 1954 Pat 349 (F), decided by Narayan and Jamuar, JJ. In this case, the only defect was that instead of a certificated guardian in ignorance another person was appointed guardian of the minor. It was held that as no prejudice had been caused to the minor, and, there was no fraud, this Irregularity did not make the proceedings invalid.

67. On a review of all the above mentioned cases of this Court, and, which have been relied upon by the appellants, it will, therefore, appear that:

(i) None of the cases, except the case of AIR 1923 Pat 242 (2) (A), were cases in which there was non-compliance of O. 32, R. 3(4);

(ii) Some of these cases were cases in which O. 32, R. 4(3) had been violated, but the Courts did not consider, and, refer to the earliest Bench decision of this Court in AIR 1917 Pat 161 (F) which was exactly on the point, and, which held a contrary view;

(iii) In the rest of the cases, there was only an absence of a formal order of appointment, which was covered by Walian's case (O);

(iv) In none of the cases, the Court tried to find out the basis of Walian's case (O), nor, did the Court consider the most important fact that O. 32, R. 4(3) was a new provision introduced for the first time only in the Code of 1908, and, that there was no similar provision in the Code of 1882, on the basis of which Walian's case (O) was decided, and which fact made a material difference in the legal position; and

(v) In AIR 1923 Pat 242 (2) (A) also. P.R Das, J., who delivered the main judgment, as stated before, did not either consider the earlier Bench decisions of this Court in AIR 1921 Pat 25 (G) and AIR 1917 Pat 161 (F), nor, did his Lordship keep in view the fact that in the Code of 1882, which was the basis of Walian's case (O), there was no provision similar to either O. 32, R. 3(4), or, O. 32, R. 4(3) of the Code of 1908.

68. For these reasons, I do not think the above cases are any authority here. I would, therefore, follow AIR 1921 Pat 25 (G); AIR 1922 Pat 291 (I); AIR 1917 Pat 161 (P); 32 Ind App 23 (N) and AIR 1933 Pat 97 (J) and, hold that disregard of O. 32, R. 3(4) or even O. 32, R. 4(3) of the Code, makes the order appointing a guardian for a minor without jurisdiction and null and void.

69. In Thakur Tajeswar Dutt v. Lakhan Prashad Singh, AIR 1923 Pat 231 (W), Sir Dawson Miller, the distinguished Chief Justice of this Court, sitting with Poster, J. observed that it must be remembered that the Code of 1382 contained no provision similar to that found in O. 32. R. 4(3) of the Code of 1908. In this case, their Lordships had to construe Section 443 of the CPC, 1882, and, in those circumstances, their Lordships followed Walian's case (O), and held that case applied to the case under consideration by their Lordships in view of the fact that in Walian's case (O) a minor was sued through his mother as guardian, and no formal appointment of the mother as guardian was made by the Court under S. 443 of the Code of 1882, but the Court, however, appeared to have treated her as the guardian throughout.

70. Their Lordships observed that in the case under their consideration, there was not even a defect in the procedure, but if there had tern one, Walian's case (O) was sufficient authority for holding that where the interests of the minor had not been prejudiced, and there was nothing to shew any prejudice in the case, the defect was not fatal.

71. It should be remembered that Sir Dawson Miller was also a party to the earlier case of AIR 1921 Pat 25 (G), in which his Lordship was considering O. 32, R. 3(4) of the Code of 1908, and, held that want of notice to minor or his guardian in terms of O. 32, R. 3(4) made the order appointing a guardian-ad-litem without jurisdiction.

72. On a review of the above mentioned decisions pros and cons, of the Judicial Committee, and of this Court, I have come to some definite conclusions, which I may restate and summarise as below;

1. Order 32, R. 3(4) of the Code is mandatory and imperative, and its terms must be strictly complied with. Unless notices in terms of O. 32, R. 3(4) are served on the minor and his guardian, and, when in spite of service of such notice they do not choose to appear, only then, and, then only, the Court gets jurisdiction to appoint a guardian-ad-litem for such a minor. But, even then, before appointing a guardian for the minor the Court must, as required by O. 32, R. 4(3), obtain consent of the person proposed to be appointed guardian for the minor.

73. Disobedience of these mandatory provisions 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 proceeding, notwithstanding that his name appears on the record, and, as such, he must be deemed in law to be wholly unrepresented, 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 order against such a minor, and, when such a minor is not a party to an execution proceeding, the execution Court also has no jurisdiction to sell his property, because the Court has no jurisdiction to sell the property of a person, who is not a party to the suit, or the execution proceeding.

74. The mere fact that a pleader guardian-ad-litem has been appointed by the Court, without complying with the mandatory provisions of O. 32, R. 3(4) of the Code, and, the further fact that such a pleader guardian has acted on behalf of such a minor, cannot clothe him with the power to act as such on behalf of such a minor, and he must be considered to be disqualified from acting as such guardian under the express provisions of Order 32, rule 3(4) of the Code, and therefore, in such a case also, the minor is not properly a party to the proceeding, and the judgment rendered or any order passed against him is without jurisdiction, and null and void, and the Court will have no jurisdiction in such a case also to proceed to sell his property.

2. Where, however, there is a mere defect, such as, absence of a formal order appointing a person as guardian-ad-litem, notwithstanding that the notice in terms of Order 32, rule 3(4), and, Order 32, rule 4(3), have been served, such a defect in the appointment of the guardian will not necessarily be fatal to the proceeding, unless it is shewn that the minor was prejudiced by the defect because such a defect is a mere Irregularity, and a defect of mere form, and not of substance, and it does not go to the root of the jurisdiction of the Court to render any judgment against such a minor.

3. When, therefore, sub-rule (4), of rule 3 of Order 32, of the Code, has been broken and completely disregarded, such a disobedience results in nullification of the order appointing guardian, and, therefore, in such a case the question of prejudice or no prejudice to the minor is irrelevant. Such a defect being of substance, and going to the root of the jurisdiction of the Court, the question of prejudice or no prejudice to the minor is not the determining factor in order to ascertain the invalidity of the proceeding against such a minor. Such a proceeding is null and void against the minor, even when no prejudice has been caused to him by such a defect.

75. For these considerations, in my judgment, the sale of now-plaintiff's share has rightly been declared to be void by the court of appeal below. I would, therefore, affirm the decision of the learned Subordinate Judge.

76. In view of this decision, it is no longer now necessary to consider the other objections raised by the appellants, such as that Section 47 of the CPC is a bar to the suit or, the question whether non-service of a notice under Order 21, rule 22 of the Code makes the sale void, or voidable, or, whether Sub-rule (3), introduced by the amendment of rule 22, Order 21, of the Code, by this Court in 1947 is retrospective or prospective or, whether the objection on the ground of non-service of notice under Order 21, rule 22 of the Code was barred by res judicata.

77. In the result, the appeal fails, and is, accordingly dismissed with costs.

78. Ramaswami, C.J:— I agree.

V.R.B

79. Appeal dismissed.