The provisions of Order 32, Rule 3 (4) and Rule 4 (3) of the Code of Civil Procedure, 1908 are mandatory and a decree obtained against a minor in complete disregard of these provisions is without jurisdiction and void ab initio.

( 1 ) N. K. SEN, J. , sitting singly, referred this Second Appeal to the Division Bench for disposal since, in his Lordship's opinion, there was a conflict of authorities upon the only question of law which called for his determination in this appeal.

( 2 ) THE second appeal arises out of a suit brought by the respondents, who are minors, for a declaration that the ex parte decree for rent obtained by the appellants against them and their co-sharers, in R. S. No. 2006 of 1944, was not binding upon the respondents inasmuch as the respondents were, in that suit, impleaded as represented not by their mother who was their natural guardian, but by their brother, Gobinda alias Gobardhan, who was defendant No. 12 in the suit. It is now established by the findings of the Courts below that there was no adverse interest of defendant No. 12 against the minor defendants, though he did not contest the suit and also that the decree was not tainted by any fraud on the part of the appellants or of defendant No. 12.

( 3 ) THE question of law which arises is whether the minors were, in the above circumstances, properly represented by their brother who was not their natural guardian, so as to make the decree in the suit binding upon the minors. The learned Munsif relied upon the doctrine of 'effective or 'substantial' representation, answered this question in the affirmative, and dismissed the instant suit for declaration. This decision has been reversed by the lower appellate Court, holding that there was no representation under the law, by the brother, and in this view, the suit brought by the respondents has been decreed. The appellants having come up on second appeal, N. K. Sen, J. , thought that there was a difference of judicial opinion on the aforesaid question, and, hence, referred the appeal to the Division Bench for disposal.

( 4 ) UPON a careful consideration we hold that the question must be answered in the negative and the view taken by the learned Subordinate Judge must be upheld

( 5 ) THE question, as the learned subordinate Judge has pointed out, has to be examined from a two-fold approach, namely, from the point of view of the Code of Civil Procedure and of the Bengal Tenancy Act. The reason is that while the general law relating to the representation of a minor defendant is provided in Order 32 of the Code of Civil Procedure, a special procedure is laid down in Section 148 (h) of the Bengal Tenancy Act, which must be complied with by a landlord who, instead of being contented with a money decree for his arrears of rent under the general law, is anxious to have a 'rent decree', with all its larger benefits under Chapter XIV of the Bengal Tenancy Act. A 'money decree' under the C. P. Code is, however, sufficient to pass to the decree-holder the right, title and interest of the judgment-debtor. If, therefore, in the instant case, there has been a valid decree against the minors in compliance with the requirements of the Code, the instant suit would fail. The appellants may thus fall back upon the incidents of the decree in question under the C. P. Code in case it is found that the provisions of Section 148 (h) of the Bengal Tenancy Act have not been complied with. We must, therefore, examine the records of this case with reference to both the provisions just referred to.

( 6 ) I. It is patent from the records that there was no attempt, in the Rent suit in question, by the landlords, i. e. , the appellants, to comply with the requirements of Section 148 (h) of the Bengal Tenancy Act.

( 7 ) ORDER 32, Rule 4 (3), of the C. P. Code provides that "no person shall without his consent be appointed guardian for the suit. " It means that a guardian-ad-litem cannot be appointed by the Court under this order, for a minor party in a suit, without obtaining the consent of the person who is proposed to be so appointed. Section 148 (h) of the Bengal Tenancy Act dispenses with this requirement of obtaining actual consent, provide