Sulaiman and King, JJ.:— This is an appeal by Talib Ali Shah, defendant No. 20, arising out of a suit on the basis of a mortgage deed dated the 12th of May, 1904, executed by the original owner of this property, Mahbub Ali Shah, in favour of the plaintiff Piarey Lal and his co-mortgagee Nanak Chand whose rights he has since acquired under a subsequent purchase. When the suit was originally instituted Talib Ali Shah was described as a major, and an ex parte decree was obtained against him and the other defendants. When however the decree was put in execution he objected that he had all alone been a minor and had not been properly represented. The execution court acceded to the contention and allowed the objection. The plaintiff Piarey Lal then applied to the original court under section 151 of the Code of Civil Procedure claiming that the suit should be restored and proceeded with after the appointment of a guardian ad litem, of Talib Ali Shah. The court acceded to this request and the suit was tried on the merits and has been decreed. Talib Ali Shah now appeals.
[Two pleas were raised by the appellant, the first of which is not material for the purpose of this report the discussion of this plea has therefore been omitted.]
In the second place he pleaded that inasmuch as no guardian ad litem had been appointed for in the suit could not be deemed to have been instituted on the date when he was impleaded as a major.
The second plea is equally groundless. When the suit was instituted Talib Ali Shah was duly made a defendant although he was wrongly described as a major. He ought to have been described as a minor and after the institution of the suit an application should have been made to the court under order XXXII, rule 3, for the appointment of a guardian ad litem of the minor. The omission to follow the necessary procedure amounted to a material irregularity which made the decree totally ineffective and invalid as against the minor. But we cannot treat the suit as having been either dismissed or decreed effectively against Talib Ali Shah. The view which has prevailed in this High Court is that subsequent to the discovery that the minor has not been properly represented by a duly appointed guardian, it is open to the court in the exercise of its inherent power under section 151 of the Code of Civil Procedure to restore the case to its original number on the file and proceed with it after duly appointing a guardian. We may refer to the case of Bhagwan Dayal v. Param Sukh Das (1916) I.L.R, 39 All., 8 which was followed in Kirpa Kishan v. Babu Lal (1923) I.L.R, 45 All., 606. These cases appear to have been dissented from by the Madras High Court of two grounds. First that order IX, rule 13, cannot apply as the minor was really no party to the decree, and secondly that the restoration of the case and the appointment of a new guardian is tantamount to the addition of a new party to the suit. It Page: 927is unnecessary for us to consider whether order IX, rule 13 would be applicable to such a case, for in the present case the inherent jurisdiction under section 151 has been exercised. We are unable to accept the view that the restoration of the case and the appointment of a guardian ad litem in any way amounts, to the addition of a new party. Talib Ali Shah has been a defendant to the suit from the very beginning, the only defect being that no proper guardian was appointed for him. The appointment of a guardian ad litem must always be some time after the institution of the suit and the suit must be deemed to have been instituted against the minor on the date when it was filed, even though on that date the guardian ad litem was not or could not have been appointed. We are unable to accept the view of the Madras High Court expressed in Eda Punnayya v. Jangala Kama Kotayya (1919) 53 Indian Cases, 184 and followed in Arumuga Goundan v. Periavanjiappa Goundan (1923) 46 M.L.J, 348. We prefer the view which has so far prevailed in this High Court and dismiss this appeal with costs.