A decree passed against a minor represented by his elder brother is not a nullity even if a formal order appointing the elder brother as guardian ad litem was not passed, provided the minor's interest was effectively represented in the suit.

1. - In this revision petition, learned Counsel for the petitioners urged that the executing court erroneously refused to. entertain the objections filed by them about the execution of the decree, under Section 47 of the Code of Civil Procedure .

2. A decree was obtained by the opposite parties against Bansilal Laxmilal, Radheyshyam, Jagdish and Babu Minor, under the guardianship of his elder brother Bansilal, on August, 4, 1979 from the court of Munsif, Nimbahera, by which the judgment, debtors were directed to construct a drain 1' wide and 42' long, on the northern wall of their house for the flow of rain water from the roof of the plaintiff's house, within a period of one month. All the defendant judgment-debtors are sons of Babu and it is not disputed that Bansilal is the eldest amongst them. The decree-holders filed an execution application on September 13, 1979, in which Babu, Smt. Dakhi widow of Babu and Ghanshyam, minor son of Babu under the guardianship of his mother Smt. Dakhi Bai, filed an objection petition under Section 47 Civil Procedure Code. It was stated by Smt. Dakhi Bai and Ganshyamj that they were not nude parties to the suit and as such the decree could not be executed against them and their property. On behalf of Babu, it was stated in the objection petition that Bansilal was not his legal guardian, and as he was a minor at the time of institution of the suit, it was claimed on his behalf that his mother Smt. Dakhi Bai was his natural guardian and in her presence his eldest brother Bansilal had no right to represent the minor defendant Babu in the suit. On this ground, it was urged that the decree was inoperative and null and void, so far as the interest of Babu was concerned. The trial court held that the objection petition filed by the three petitioners was not maintainable under Section 47 C.P.C. and rejected the same.

3. So far as Dakhi Bai and Ganshyam are concerned, learned Counsel for the petitioners was unable to show as to how they were entitled to maintain an objection petition under Section 47 Civil Procedure Code. On their own showing, Smt. Dakhi Bai and Ganshyam were not made parties to the suit and as such no decree was passed against them. Section 47 C.P.C. permits all questions, arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, to be raised before the court executing the decree. As the above named two persons were not made parties in the suit, in which the decree was passed, they could not raise any question under Section 47 C P.C. for determination by the court executing the decree. If any rights of Smt. Dakhi Bai or Ganshyam are adversely affected by the decree, they could ventilate their grievance, if any, by means of a separate suit, if they so like. Babu was made a party defendant to the suit in which decree was passed, but if his case is that he was not duly represented in the suit, then he also could not raise an objection under Section 47 C.P.C. before the executing court. As on his own showing, he was not properly made a party to the suit.

4. In Mst. Rashid-un-nisa v. Mohd. Ismail Khan and Ors. 36 Indian Appeals 168 , the question for consideration before their Lordships of the Privy Council was as to whether a suit filed by a minor was maintainable for a declaration that two decrees and three sales made in execution, affecting her share in her father's estate, were invalid as against her on the ground that she was not properly represented in the proceedings which resulted in the passing of the decree and the execution proceedings. Their Lordship of the Judicial Committee observed as under:

"Section 44 (now Section 47) of the Civil Procedure Code applies to questions arising between parties to the suit in which the decree was passed, that is to say, between parties who have been properly made parties in accordance with the provisions of the Code. Their Lords