Raj Kishore Prasad, J.

1. On this appeal, by defendants 3 and 4, from a judgment of reversal, of the Subordinate Judge, 1st 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-rule (4) of Rule 3 of Order 32 of "the Code of Civil Procedure, 1908?

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

3. 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-debtors, 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.

4. On the finding of the Court of appeal below, no notice under Order 21, Rule 22 (1) of the Code, was issued to the now-plaintiff nor, any reason was assigned for dispensing with it, as required by Sub-rule (2) of E. 22 of Order 21 of the Code, nor, any notice under Order 32, Rule 3(4) was served either on the minor, who is now the plaintiff, or, on his mother, his proposed guardian.

5. 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 Order 21, Rule 66 of the Code of Civil Procedure, was issued to the minor, that is, the plaintiff, but one such notice was issued to the pleader guardian-ad-litem.

6. 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.

7. 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 plaintiffs share was without jurisdiction, void and not binding on him, and, therefore, he should be put in possession of the said property.

8. The first Court dismissed the plaintiffs 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 plaintiffs suit.

9. 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 plaintiffs share was void, because of absence of a notice under Order 21, Rule 22 of the Code of Civil Procedure. He further held that the appointment of a pleader guardian-ad-litem without any notice under Order 32, Rule 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 Rule P., Jamuar, J.

10. 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 his argument, that, no doubt no notice under Order 32, Rule 3 (4) of the Code