Beevor, J - (1.)This is an appeal by the defendants against a decision of the Additional Subordinate Judge of Darbhanga who, reversing the decision of the first Munsif of Darbhanga, has, on appeal, decreed, a suit for a declaration that a decree passed in mortgage suit. No. 199 of 1934 and the sale held in execution thereof in Execution case No. 672 of 1936 on 21-12-1936, and the delivery of possession following thereon are null and void and are not binding on the plaintiff- respondents and for recovery of possession of the land.
(2.)The three plaintiff-respondents are brothers of whom one is still a minor. Mortgage Suit No. 199 of 1931 was brought against the plaintiffs and their father to enforce a simple mortgage bond dated 7-12-1933 executed by the plaintiffs father. The suit was dismissed against the present plaintiffs, who were then minors, for default on the failure of the present appellants, who were then plaintiffs, to get a guardian-ad-litem appointed for them onpayment of the necessary fees. After the suit had been so dismissed as against the sons, a preliminary mortgage decree for sale was passed against the father and on 16-3- 1936 an application was filed to make the decree absolute. That application was, however, struck off for failure to prove service of notice on 20-6-1936, and on 27- 6-1986 a second application for making the decree absolute was filed, and after the issue of a certain notice and receipt of service return a final decree was passed on 27-7-1986. Before the application for final decree was made, the father of the plaintiff-respondents had died and one of the questions raised in this appeal relates to the effect of the proceedings for final decree which were taken against the present plaintiff-respondents, who were then minors. On 1-9-1936 an application for execution of the decree Was filed and in the execution case started thereon the property was sold and purchased by the appellants on 21 December 1956. After delivery of possession was taken by the appellants as auction- purchasers, the respondents instituted the suit, out of which this appeal arises, for the reliefs indicated above. They denied that there was any debt owing by their father or any legal necessity for the mortgage. They alleged that the suit and the decree obtained against their father were fraudulent and collusive. They denied that their mother was their natural guardian after their father's death and denied that any notice was served on her or on them in the proceedings for final decree or for execution.
(3.)The plaintiff-respondents were all minors until after the execution sale which is now challenged. The Munsif in the trial Court held that consideration for the mortgage in question passed and that the mortgage was executed to pay off an antecedent debt of the plaintiffs, father which was due on a certain hand note. He found that the plaintiffs mother was their natural guardian and that notice for the final decree and also notice under Order 21, Rule 22, Civil P.C. in execution were served on her. He found that the mother did not appear in the suit or in the execution proceedings and that no other guardian ad litem was appointed for the minor plaintiffs either in the suit or in the execution proceedings and he found that there was no formal order appointing the mother as guardian ad litem. On these facts he took the view that the final decree could not be held to be a nullity by reason of the absence of any formal order appointing the mother as guardian ad litem, and held that the final decree was binding on the plaintiffs. He held that as notice under Order 21, Rule 22 was served "on the plaintiffs and their mother" the sale in execution of the decree was binding on the plaintiffs.