JUDGMENT

Richardson, J. - This second appeal arises out of an application made by the respondent No. 1 before us, Surendra Nath Das, to set aside an execution sale.

2. The relevant facts are as follows:--The respondent No. 2, as landlord, obtained on the 9th February 1915 a decree under the Bengal Tenancy Act for arrears of rent in respect of a holding of which three adults, Dinu Das, Thakardas Das, and Rupai Das, and a minor, Surendra Nath Das, were co-tenants. It appears that these parsons were members of the same family, though their precise relationship is not apparent on the record. I will say at once that Surendra Nath Das was at all material times a minor and still appears as such on the record, though he may now have attained his majority. He was represented in the suit by his mother as his guardian ad litem, and it is not disputed that the decree was a good and valid decree as well against the infant as against the adult defendants. The mother of the infant died on the 9th October 1916. The decree holder apparently was not aware of this death. An application for execution was filed in 1917 in which the mother's name appears as the minor's guardian. A notice was issued under Order XXI, Rule 22, addressed to the adult co-tenants and to the minor and his mother. On the book of the notice there is an affidavit by the serving peon that it was delivered, at the house at which all the co-tenants were living, to Surendra Nath, then apparently about thirteen years old. The holding was sold by public auction on the 19th May 1917 and was purchased for Rs. 250 by the appellant, a third party having no connection with the parties to the suit.

3. The proceedings which followed are somewhat surprising and illustrate the difficulties with which decree-holders have to contend in this country, First on the 19th June 1917, the judgment-debtor No. 1, Dinu Das, applied to have the sale set aside. That application was dismissed on the 1st September 1917, the sale being confirmed on the same day. Possession was delivered to the auction purchaser, the present appellant, on the 4th December 1918. On the 6th July 1919, however, the judgment debtors Nos. 2 and 3, undeterred by the failure of the judgment debtor No. 1, made a second application to have the sale set aside. The application met with the same fate as its predecessor and was dismissed on the 6th July 1919, It is scarcely credible but a third application for the same purpose--the application with which we are now concerned--was made by Surendra Nath, represented by his brother-in-law as his next friend, on the 21st July 1919. The application was thrown out by the Court of execution, but on appeal to the District Judge's Court it succeeded. The success so obtained proves at any rate the virtue of persistence. The bare statement of the facts sufficiently explains why the case turns not on the merits but on points of form.

4. The judgment of the learned Munsif, dismissing the application, is brief. The adult co-tenants had not been made parties to the proceeding and he held that they ought to have been brought on the record under the proviso to Order XXI, Rule 92(2). In the view we take it is unnecessary to express an opinion whether the learned Munsif was right in that respect. He went on to say that the omission to appoint a guardian ad litem for Surendra Nath Das after the death of his mother was in repeat of the execution proceedings an irregularity which made the sale not void but merely voidable.

5. The learned District Judge, however, on the appeal preferred by Surendra Nath, was of a different opinion. He held that the omission to have a guardian appointed for the minor in the execution proceedings was not merely an irregularity but an illegality which vitiated the sale, and that, apparently, not only as regards the minor's one-fourth share of the holding but as regards the entirety. He further held that no notice had been legally served upon the minor under Order XXI, Rule 22, and th