JUDGMENT

Harrison, J. - The facts of this case are that on the 1st August, 1914, one Sahib Dayal was appointed guardian of the person and property of three minors and in the same order he was directed to give ten thousand rupees security. This he never did and on the 11th Decembar, 1914, be said definitely that he could not do so. On the 17th December, 1915, Major Frizelle, District Judge, passed an order which, in my opinion, is tantamount to removal of the guardian under Section 39. It recited the fact that no security had been given and said that anybody who wished to be appointed guardian could now apply. This order was interpreted as an order of removal on the 13th October, 1920, by Sheikh Rahim Bakhsh, Senior Subordinate Judge at the time. It is a fact which appears to me to be wholly immaterial that Lala Maya Bam in interpreting it in 1917 was of opinion that Sahib Dayal has not been removed. Now, on the 28bh August, 1921, or more than seven years after the original order, Sahib Dayal applies to the Senior Subordinate Judge to be allowed to put in the security and to be treated as the guardian, the principal minor having in the meatime reached the age of 18. The Senior Subordinate Judge allowed the application and ordered a certificate of guardianship to be given him and directed that he should produce the security at once. Against that order this appeal is lodged.

2. Counsel has put before me the conflicting views of the Madras and Bombay High Courts as to whether an order of appointment is complete and effective before the security has been lodged or is to be treated as a conditional order which will become absolute after and when that security is lodged. I do not think it is necessary to go into this question beyond saying that the order in the sense that it can be appealed against is, in my opinion, a complete order but it does not become operative until the security is put in. Inasmuch as the person appointed definitely stated that be was not in a position to give security and did not attempt to do so, I read the order of Major Frizelle as tantamount to an order of removal under Section 39 on the ground that the guardian bad continuously failed to perform the duties of bis trust and had contumaciously disregarded the order of the Court. I think the view taken by Sheikh Rahim Bakhsh is perfectly correct. Finding, therefore, that the guardian appointed has been removed I hold that there is no guardian at present though there has been one in the past. This guardian was debarred from functioning until several conditions were fulfilled, and he did not, as matter of fact, act as such.

3. I, therefore, accept the appeal and set aside the order allowing security to be lodged. Costs of the appellant will be paid by the respondent.