JUDGMENT

Zafar Ali, J. - The defendant-appellant Fazal Din or Fazla brought two suits--one against Mt. Muhammad Bibi and her four sons and the other against the said four minors and their uncle Lal Din, The minors' father was dead and their mother had remarried Lal Din. After the death of their father Mt. Muhammad Bibi leased out the minors' land to Fazal Din for five years, but she resumed it before the expiration of that period. The deed of lease was, however, inadmissible in evidence for want of registration and there was the further fact that the mother had no power to lease out the minors' land for so long a period. The former suit was for damages for dispossession before time and the other was based upon a bond. A ministerial officer of the Court was appointed the minors' guardian ad litem in both the cases and both were eventually decreed. In execution of the decree a house of the minors was attached. Lal Din was appointed their guardian for the execution proceedings and he objected that the house was not liable to attachment and sale as the minors were agriculturists. The house was, however, sold and it was purchased by the decree-holder himself The minors now sue to avoid the decrees and the sale. The trial Court decreed their suit in fall. On appeal by Fazal Din the learned Senior Subordinate Judge came to the conclusion that the decree in the bond suit was binding upon the minors but that the decree in the suit for dam ages was not because the guardian for that suit had been guilty of gross negligence inasmuch as he failed to raise 'necessary pleas and defend the action properly With regard to the sale in execution the learned Subordinate Judge held that that too was not binding upon the minors as the guardian for the execution proceedings also had been guilty of gross negligence. Upon these findings the minors were restored to their original rights.

2. In second appeal preferred by Fazal Din his learned Counsel, Mr. Mohsin Shah, has raised only two contentions, viz, (1) that a decree against a minor cannot be set aside on the ground that his guardian for the suit had been guilty of gross negligence in conducting the defence and (2) that the minors were not entitled to avoid the sale in toto as they had benefited by it to the extent of the part of the sale proceeds paid to another decree-holder.

3. In support of (1) counsel relies on Imam Din v. Puran Chand [1920] 1 Lah. 27 in which Scott-Smith, J., held that a decree against a minor cannot be set aside only on proof of fraud and collusion on the part of his guardian, but if the guardian neglected to support the case of the minor and there is nothing to show that he did so deliberately that circumstance alone would not entitle the minor to avoid the operation of the decree. This ruling was also cited before the Senior Subordinate Judge and he did not follow it in view of the later ruling of Scott-Smith, J., in Nawab singh v. Gurbakhsh Singh A.I.R. 1925 Lah. 116, in which that learned Judge, considering Ahmad v. Amir [1898] 35 P.R. 1898, Ismail v. Sultan Bibi [1917] 103 P.R. 1913, Jowla v. Hira Singh [1903] 55 P.R. 1903, and G. Punnayah v. R. Viranna A.I.R. 1922 Mad. 273, came to a different conclusion. There can be no manner of doubt that the ministerial officer of the Court who was appointed guardian ad litem in the suit for damages took no steps whatsoever to defend the action and was guilty of laches. Similarly Lal Din who was the guardian in the execution case did not make any real effort to protect the minor's interests most probably because he was benefited at the expense of the minor inasmuch as the decree as against him was also satisfied by the sale of their house. The decision of the lower appellate Court on this point appears therefore to be correct.

4. The next question is whether the minors were benefited to any extent by the sale of their house. It may be observed that they were under no personal liability to pay anything and in no case they were liable to