JUDGMENT

1. This is art appeal by the minor defendants Nos. 1 and 5.

2. The facts briefly are these. A suit for sale was brought by one Lala Bithal Das against the mortgagors, and two persons, Baidy Ram and Munni, as subsequent transferees When Baidy Ram died, his sons Ram Kishen and Lachman, the present appellants, were brought on the record. The plaintiff applied that Chunna Ram, the paternal uncle of the minors, Ram Kishen and Lachman, should be appointed their guardian for the suit.

3. A notice was issued to Chunna Ram to state to the Court whether he was willing to accept the appointment or not, and he was to appear on the 15th August, 1927. The notice was served on Chunna Ram on the 5th August, 1927, but he did not appear on the 15th August, 1927. On the latter crate, the Court directed that the case should proceed ex parte against the minors, Ram Kishen and Lachman. There is no formal order appointing Chunna Ram as the guardian for the suit of the minor defendants.

4. On the 15th August, 1927, it was reported to the Court that the original plaintiff, Bithal Das, had died leaving a will, and it would require some time to bring his legal representatives on the record The learned Judge granted time, and the case was adjourned for three months.

5. On the 8th November, 1927, an application was made to the Court to substitute the names of two persons as the legal representatives of the deceased plaintiff, Bithal Das. On this application being made, an order was passed to the effect that two notices should issue to the defendants one was a notice asking the defendants to say if they objected to the bringing on the record of the two persons as the legal representative of the plaintiff, and the other notice was to the effect that the 23rd January, 1928, had been fixed for the hearing of the case.

6. On the 23rd January, 1928, Chunna Ram appeared before the Court of first instance and made an application (No. 65-C) asking the Court to make him a party. He said that the mortgage, by virtue of which Baidy Ram had been made a defendant, was the joint family property of himself and Baidy Ram, that he had an interest in the bond and that on that ground he should be made a party. This application was rejected on that very day, on the ground that the application had been made too late.

7. Thereupon, Chunna Ram made an application to the Court saying that so far no guardian had been appointed for the minors, that he did not want to act as the guardian of the minors and some other person should be appointed. The learned Munsif rejected this application on the ground that the notice of appointment of guardian had been served on the applicant on the 5th August, 1927, and if a second notice had been issued to Chunna Ram, it was issued by mistake of the office.

8. Thereupon a third application was made by Chunna Ram on behalf of his minor nephews, and this time it was for adjournment. He said that he had been appointed a guardian against his will, that he had no previous information of the case, that he applied for summoning a record (on 18th January, 1928) in the impression that he was a party to the suit and that in the interest of the minors an adjournment should be granted. Tae learned Munsif rejected this application and proceeded to hear the case.

9. The case was heard, and a few days later judgment was pronounced. It was found that the minor defendants, Ram Kishen and Lachman, had failed to prove that they held any priority over the mortgage in suit, We may mention here that this was the only point taken on behalf of the minors that really affected the case. Their case was that the mortgage in favour of their father, although of a date subsequent to the date of the mortgage in suit, had been executed to pay off a decree (No. 131 of 1916) passed on a mortgage of 1915, and that, therefore, they had priority over the plaintiff's mortgage.

10. Chunna Ram filed an appeal before the learned District Judge, and it was heard by the Additional Subordinat