An application under Order 9, Rule 13, Civil Procedure Code, is not maintainable by a minor defendant not represented by any guardian.

ORDER:- This revision petition is directed against the order dated 30-9-1972 by which the learned Sadar Munsiff No. 1, Silchar has set aside the ex parte decree dated 18-5-1965 passed in Money Suit No. 323 of 1964 and the execution proceedings in pursuance thereof.

2. The facts leading to this petition may briefly be stated :

3. Petitioner No. 1 M/s. Budhai Nepal Chandra Lalit Mohan Saha firm (registered) instituted Money Suit No. 323 of 1964 against opposite parties Nos. 1, 2, 3, 4 and petitioner No. 2 described as Proprietor, of M/s. Jayatara Stores, for realisation of an amount of Rs. 1,866.45 (P) in the Court of the Sadar Munsiff at Silchar. The suit was decreed ex parte on 18-5-1965. Properties of the defendants-judgment debtors were attached and sold in Money Execution Case No. 80 of 1965 on 22-2-1966 and the plaintiff decree-holder purchased the same with the permission of the Court. Delivery of possession of the properties purchased were also taken through Court on 26-4-1966. At the time of sale of the properties in question opposite parties Nos. 5 and 6 were in possession. It is stated that opposite parties Nos. 5 and 6 were tenants in respect of the properties in question and attorned to the auction purchaser. But they having defaulted in payment of rent petitioner No. 1 brought two ejectment suits against them being T. S. No. 275 of 1969 and T. S. No. 276 of 1969. While those two ejectment suits were pending in the Munsiffs Court at Silchar, opposite party No. 1 Sudhangshu Ranjan Dev and opposite party No. 2 Sushendra Ranjan Dev filed an application on 30-1-70 under Order 9, R.13 of the Civil Procedure Code for setting aside the ex parte decree dated 18-5-1965 passed in Money Suit No. 323/64 against petitioner No. 1 M/s. Budhai Nepal Chandra Lalit Mohan Saha Firm (Registered) and petitioner No. 2 Sashanka Sekhar Dev in the Court of the Sadar Munsiff No. 1, Silchar and the case was numbered as Misc. Case No. 43 of 1970. Petitioners Nos. 1 and 2 filed two separate objections in the Misc. Case in which four P. Ws. and 2 D. Ws. were examined and by the impugned order dated 30-9-72 the learned Munsiff set aside the ex parte decree and also execution proceedings in pursuance thereof.

4. In the application under Order 9, Rule 13, Civil Procedure Code, the petitioners (Opposite Parties Nos. 1 and 2 in this revision petition) contended that the summonses on the defendants Nos. 3 and 4 Sushendra Ranjan Dev and Sudhangshu Ranjan Dev were sup-pressed by defendant No. 1 Sashanka Sankar Dev, who is opposite party No. 2 in the Misc. Case and the petitioner No. 2 in this revision petition and that the summonses on the defendants Nos. 3 and 4 were not at all served. It was also stated that on 4-12-1964 and 18-5-1965 on which Money Suit No. 323 of 1964 was filed and decreed ex parte respectively defendant No. 3 Sushendra Ranjan Dev was a minor. The opposite parties in the Misc. Case filed objections stating that summonses were served on the defendants and defendant No. 3 was a major.

5. On the pleading of the parties in the Misc. Case the learned Munsiff framed the following points for decision:-

(1) Whether the Misc. Case is maintainable?

(2) Whether the petition is barred by limitation?

(3) Whether the petitioner No. 2 was a minor at the time of the original suit?

and

(4) Whether the summonses were duly served on the petitioners?

6. The learned Munsiff took up Point No. 3 first and having considered all the evidence on record he came to the definite finding that petitioner No. 2, that is, defendant No. 3 in the Money suit was a minor when the ex parte decree was passed against him in Money Suit No. 323 of 1964. The learned Munsiff also found on consideration of the materials on record that summonses were not served on the petitioners, that is, defendants No. 3 and 4 in the Money Suit.

7. The learned Munsiff then took up point No. 2 and after considering the materials on record came to the finding that the petitioners came to know of