JUDGMENT :

Stanley, J.:—

The plaintiff-appellant, Hangman Parshad, in the suit out of which this appeal has arisen, sued for a declaration that a certain house was his property and was not saleable and did not pass under a sale which took place on the 18th of February, 1900. One Munna Das, who was the certificated guardian of the appellant, on the 18th of June, 1891, purported to mortgage the house in question as his own property in favour of two persons, Ajudhia and Munna Lal. The mortgagees brought a suit for enforcement of payment of the mortgage-debt by sale of the mortgaged property and obtained a decree for sale on the 18th of September, 1897, and the property was sold on the 18th of February, 1900, to the defendant-respondent, Muhammad Ishaq. In the suit which was instituted by the mortgagees the sole defendant originally was the mortgagor, Munna Das. Munna Das, however, made an application to the Court on behalf of his nephew, the plaintiff-appellant, Hanoman Pershad, to have the plaintiff-appellant impleaded as a defendant to the suit, alleging that the house did not belong to him. (Munna Das), but was the property of his nephew. That application was signed by Munna Das, as certificated guardian of the plaintiff-appellant. The Court acceded to this application and directed that Hanoman Pershad, the plaintiff-appellant, should be made a party defendant to the suit and directed him to file a written statement. No application whatever was made under the provisions of section 443 of the Code of Civil Procedure for the appointment of a guardian ad litem for Hanoman Pershad who was a minor. The suit proceeded in the absence of a guardian ad litem and the sale of the property was ultimately carried out. Munna Das put in a written statement professing to act as guardian of his nephew and filed an appeal against the decree which was passed in the suit, but allowed the appeal to be dismissed for default.

2. Now the provisions of section 443 are imperative. They direct that where a defendant is a minor the Court shall appoint a proper person to be guardian for the suit for such minor to put in a defence and generally to act on his behalf in the conduct of the case. It is abundantly clear in this case that Munna Das was not a proper person whom the Court, if it had been made aware of the facts, would have appointed as guardian. In the first place he was the mortgagor who purported to mortgage as his own, the property which he afterwards alleged was the property of his ward. He, therefore, had a conflicting interest—an interest which should have precluded any Court from appointing him as guardian ad litem in a suit brought by the mortgagees of Munna Das.

3. It is perfectly clear that the Court had not the facts before it; and it also appears to us to be clear that the Court was never called upon by the plaintiff, whose duty it was to see that a proper person was appointed guardian ad litem to appoint such guardian. The fact is that Hanoman Pershad was not properly represented as a party to that suit, and therefore any decree which was passed against him, was a mere nullity. It is said that an innocent purchaser at an auction sale should not suffer under the circumstances, but we may point out that it may be open to him under the provisions of section 315 of the Code of Civil Procedure to recover the purchase money from any person to whom it has been paid if it turn out, upon an issue which it will be necessary for us to remit to the lower appellate Court, that the plaintiff-appellant is the true owner of the house in question. The question has not been decided by the lower appellate Court.

4. It has been strongly contended on behalf of the defendant-respondent that the decision of their Lordships of the Privy Council in the case of Walian v. Banke Bihari Pershad Singh : [1903] I.L.R., 30 Cal., 1021, entitles him to the judgment of the Court. In that case minors were sued and their mother apparently was appointed as their guardian ad