The failure of the trial court to appoint a guardian ad litem for the minor defendants rendered the ex parte decree a nullity and not binding upon them.

1. This is an application under Sec.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 and 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 Sec.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 wha