JUDGMENT

1. This second civil appeal has been referred to a Bench by a single Judge of this Court under Section 14(2), Oudh Courts Act. The appeal is against the judgment and decree dated 21st December 1936, passed by I the learned first Civil Judge of Bahraich maintaining in first appeal the decree passed by the learned Munsif of Bahraich, dismissing the plaintiff's suit. The suit was brought by the appellant Mohammad Bakhsh alias Nanhun to recover possession of a house of which he claimed to be the full owner. He alleged that during his minority the defendant-respondent Allah Din had taken possession of it with the assistance of his, the plaintiff's, father. The defence was that the house had been sold in execution proceedings on a decree to which the plaintiff and his great-grandmother Mt. Hansola were parties. The defendant had obtained a sale certificate on 14th September 1923, and had been in possession since. A replication was filed by the plaintiff in which he denied knowledge of the alleged deeree and sale. He said that if the defendant had purchased the house at a public auction based on a collusive decree he was not bound thereby. The following issues were framed:

1. Is the plaintiff owner of the property in suit and has he any right to sue for it?

2. Has the defendant purchased the house in suit in auction sale and is that decree and auction sale binding on the plaintiff?

3. To what relief is plaintiff entitled?

4. Is the suit within limitation?

5. Is the suit for possession not maintainable unless the plaintiff gets the sale in favour of the defendant set aside?

2. The house in suit originally belonged to a man named Turab, the husband of Mt. Hansola. He died in 1899 and his widow remained in possession. In 1913 she gifted it to her great-grandson, the present appellant. A man named Shubrati then sued her and her great grandson for the house, claiming to be a Turab's brother. The suit was dismissed by the trial Court in July 1914 but partially decreed in first appeal in December 1914. A mortgage deed was executed on 13th February 1915, by Mt. Hansola and Makku, father and guardian of the great grandson Mohammad Bakhsh, in respect of a fourth 5 share in the house for Rs. 100. The reason why only this share was hypothecated was that in first appeal Mt. Hansolaand her great grandson had been held entitled to this share only. The mortgage deed (Ex. 17) provided that if the security was found insufficient then the mortgagee might proceed against other property of the mortgagors. It was stated in the deed that the property was being mortgaged to obtain funds for the second appeal to the Court of the Judicial Commissioner. This appeal was preferred shortly afterwards and was successful, the learned Judicial Commissioner holding that Mt. Hansola had acquired a good proprietary title in the whole house by continuous adverse possession since her husband's death. In 1922 the plaintiff and his mother, Mt. Jilai grand-daughter of Mt. Hansola who had died were sued on the mortgage by the present respondent, Mt. Jilai being impleaded as Mt. Hansola's heir. The suit was brought as if the whole house had been mortgaged. The present appellant was then a minor and his father Makku was appointed his guardian ad litem. The suit was decreed and the house was sold to the decree-holder.

2. The suit now under consideration was brought by the appellant within three years of his attaining majority. It was contended on his behalf first of all that he was entitled to ignore the decree and sale in satisfaction of the mortgage debt as he was not properly represented in that case, his guardian being guilty of gross negligence. The decree, it was argued, is void and also the sale proceedings thereunder. Article 142 or Article 144, Limitation Act, would then be applicable. Secondly, it is contended that if the decree and sale are not void, but merely voidable, on the ground of gross negligence on the part of the guardian, then the present suit shou