In O. S. No. 479 of 1921, it was decided that the decree in O. S. No. 559 of 1919, was not binding on the minors, because they were not validly represented in the earlier suit, the guardian appointed by the Court not having consented to act as guardian and not having appeared for them at the trial.
The decree in O. S. No. 479 simply declared that the decree in O. S. No. 559 was not binding on the minors, and in this respect it was in accordance with what in the view of the Privy Council, [Manohar Lal v. Jadunath Singh] was a proper decree, viz., that it Would be sufficient in such a case to remit the parties to their original’ rights, without declaring that the earlier suit would have to be tried afresh.
In the judgment in O. S. No. 479, there is an observation that O. S. No. 559 will have to be revived, as against these minor plaintiffs, and the District Munsif has now, in the exercise of his supposed powers under Sect. 151, Civil Procedure Code, taken the case back on his file and proceeded to try it. I do not think that the Court possessed inherent power to restore a suit once disposed of and to add parties to it, who were not represented at the original trial. Bhagwan Dyal v. Param Sukh Das, is quoted as an authority for so doing; but that case has been dissented from, by a Bench of this Court, in Eda Ponnayya v. Jangala Kama Kotayya pointed out by Oldfield and Seshagiri Aiyar, JJ., if a minor is not properly represented before the Court, a decree passed against him is in effect a nullity and the Court cannot set aside the ex-parte order and re-open the suit under O. 9, R. 13.
If the minors were not legally made parties to the suit, the action of the Court in making them parties now is tantamount to restoring to file a suit already disposed of and adding parties who were not represented at the original trial. The case, in Venkata Row v. Turjaram Row(4) is not an authority for such a proceeding.
I set aside the order of the District Munsif, with costs in this Court and remit the parties to their rights as they stood at the disposal of O. S. No. 479 of 1921.
C.KPetition allowed.