1962 Present: Weerasooriya, S.P.J., and H. N. G. Fernando, J.

 MUDIYANSE, Appellant, and PEMAWATHIE et al, Respondents

S. C. 172-D. C. Badulla, 13,288

Minors-Sale of their immovable property by curator -Sanction of Court obtained- Minors not represented by guardian ad litim-Invalidity of the sale- Civil Procedure Code, ss. 6, 8, 476, 479, 480.

            A land belonging to certain minors was sold on 22nd January, 1952, by the minors' step-father who was appointed by Court as curator. Sanction of Court for the sale was obtained in the curatorship proceedings, upon the allegation that the property was held by the minors in trust. There was no appointment, however, of a guardian ad litem, and the minors were at no stacje made parties. Nor did the Court give any consideration to the question whether the sale was to the advantage of the minors. In the present action instituted in 1956 the minors, by their mother as next friend, sued for a declaration of title to the land.

          Held, that, even though no order discharging the order for the sale of the land was previously sought under section 480 of the Civil Procedure Code, the Court had jurisdiction, in the present action, to declare null and void the sale.

           APPEAL from a judgment of the District Court, Badulla.

                                              The facts appear from the judgment of Fernando, J.

                                              Nimal Senanayake, for 3rd defendant-appellant.

                                               S. Sharvananda, with Bala Nadarajah, for plaintiffs-respondents.

Cur. adv. vult.

December 21, 1962. WEERASOORIYA, S. P. J. -

        I have seen the judgment prepared by my brother in this case, and I agree that for the reasons stated by him the evidence fails to establish collusion between the 1st and 2nd defendants in obtaining the order of Court for the sale of the property of the minors in D. C. Badulla Case No. G. 1770.

I also agree that the aforesaid order was void and of no effect in that it was made in proceedings to which the minors (the plaintiffs in the present case) were not parties. Section 476 of the Civil Procedure Code requires that every action by a minor shall be instituted in his name by an adult person, designated as next friend, while section 479 provides that where the defendant to an action is a minor he shall be represented by a guardian to be appointed by the Court. Where an action in which a minor is plaintiff or defendant proceeds without section 476 or section 479 being complied with, it may be possible to treat the non-compliance as an irregularity, as was done in Muttu Menika v.

Mutiu Menika1 [ 1 (1915) 18 N. L. R. 510. ]and  Rupasinghe v. Fernando 2.[  2 (1918) 20 N. L. R. 345. ] Those two cases and the more recent case of Hamid v. Marikaret al. 3[  3 (1951) 52 N. L. R. 269. ] are, therefore, distinguishable from the present case, where the order sought to be declared null and void was obtained in proceedings to which the minors concerned were at no stage parties. The difficulty that sometimes arises in defining the precise line which separates an irregularity from a defect which makes the order a nullity is discussed by Lord Greene, M. R , in Craig v. Kanseen4,[    4 (1943) 1 A. E. R. 108.  ] and he held that an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside. That the order made in D. C. Badulla Case No. G. 1770 falls into such a category does not, I think, admit of any doubt. The application in that case constituted an action as defined in section 6 of the Civil Procedure Code. Section 8 enacts that save and except actions in which it is specially provided that proceedings may be taken by way of summary procedure, every action shall commence and proceed by way of regular procedure as prescribed under the C