A guardian is liable to refund money paid under a contract entered into on behalf of a minor if the money was not paid to the minor or duly spent on their account.

Deo, J—The admitted or proved facts of this case are: In December 1947 Plaintiff agreed to purchase from ''Dau Anurudhdayal Brahmanandlal'' represented by the manager Ramdayal (Appellant) dhan worth Rs. 1000/- and paid to Ramdayal on two occasions a total sum of Rs. 922/7/- and gate him 71 empty gunny bags for filling the dhan. The Defendants failed to supply the dhan and failed to return the bags. The Plaintiff is thus entitled to get a refund of Rs. 922/7/- which he paid to Ramdayal.

2. The defence of Ramdayal that Plaintiff paid Rs. 922/7/- towards the price of 71 bags out of which 55 were removed by him and 16 remained in the house of Defendants 1 and 2 was not accepted.

3. Dau Anurudhdayal and Erahmanandlal were minors at the date of this transaction. Their mother was their guardian and the Defendant was their agent, evidently appointed by the guardian. Ramdayal held a registered power of attorney as deposed to by Anurudhdayal. The dealings of the Defendant were evidently carried on in the name ''Dau Anurudhdayal Brahmanand Talukdar Chikhliwale'' as appears in the receipt Exhibit p-l.

4. The trial Court decreed the suit against the Defendants 1 and 2 and dismissed it against Defendant No. 3. On an appeal by the Defendants 1 and 2 to which both the Plaintiff and Defendant No. 3 were Respondents, the lower appellate Court allowed the appeal, dismissed the suit against Defendants 1 and 2 and decreed it against Defendant No. 3. He now appeals impleading the other parties as Respondents.

5. The lower appellate Court did not accept the evidence of Ramdayal that he paid the amount to the guardian of Defendants 1 and 2 or deposited it in their books of account. In view of this finding, which was not seriously challenged, the Defendant No. 3 cannot escape his liability to the Plaintiff. As stated in - Tukaram v. Ramchandra 2 Nag LR 25 (A); - Jhitibai v. Tejmal,1916 AIR(Nag) 11 and - Ram Chandra v. Rupchand,1927 AIR(Nag) 296, no decree can be passed against a minor or his estate on a contract entered into on his behalf by a guardian under which no charge is created on the estate except in such cases where the minors estate would be liable for the obligation incurred by the guardian under the personal law to which he is subject. Since the minors have not received the amount of Rs. 922-7-0, they cannot be held liable to the Plaintiff and the Defendant No. 3 who has not paid that amount to them is bound to refund it to the Plaintiff. In this view the decree of the lower appellate Court is correct.

6. The learned Counsel for the Appellant, however, contends that the lower appellate Court had no jurisdiction to pass a decree against Defendant No. 3 in the absence of an appeal against him by the Plaintiff. His contention is that Order XLI, Rule 33, Code of Civil Procedure, which appears to have been invoked by the lower appellate Court, does not permit the course followed by it. Under that rule the appellate Court has power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may exercise in favour of all or any of the Respondents or parties, although such Respondents or parties may not have filed any appeal or objection.

7. The learned Counsel relies on - Muhammad khaleef v. Les Tanneries, 1926 AIR(PC) 34, where a suit was filed against A and B as agent of A. The suit against A was decreed and was dismissed against B, but B was directed to pay the Plaintiffs costs. The Plaintiff did not appeal against the decree dismissing the suit against B. In a joint appeal by A and B the suit was dismissed with costs against both A and B. In a further appeal to the Privy Council by the Plaintiff, their Lordships held that so far as B was concerned, the appeal was, in effect, an appeal direct to His Majesty in Council from the dec