- (1.) PLAINTIFF opposite parties had filed a suit for a declaration, injunction and demolition against the applicant and Opposite Parties 9 to 1.8. The applicant Bachcha was described as a minor under the guardianship of his father Krishna Kumar in the plaint. On the refusal ot Krishna Kumar, father of the applicant, Vidya Nand Vakil was appointed guardian ad litem by the Trial Court. The Trial Court dismissed the plaintiff's suit. The plaintiffs thereafter filed an appeal. In the decree of the Trial Court the applicant Bachcha alias Guddu continued to be described under the guardianship of his father Krishna Kumar. The memorandum of appeal filed by the plaintiff Opposite Parties arrayed the appli cant as minor under the guardianship of his father Krishna Kumar. The plaintiff Oppo site Parties thereafter moved an application on 19-5-71 in the Court of II Additional District Judge before whom the appeal was pending mentioning therein that Bachcha minor has been arrayed under the guardian ship of his father on account of incorrect description in the certified copy of the dec ree. It was also mentioned in the applica tion that Vidya Nand, the guardian ad litem has left the profession. It was, therefore, prayed that either the natural father i.e., Krishna Kumar should be appointed guar dian of the applicant or some other person be appointed guardian ad litem. This appli cation was disposed of by the order of the District Judge dated 7-8-71. The order men tions that Vidya Nand, the guardian ad litem appointed by the Trial Court has re ported that he is unable to continue as the guardian on account of his ill-health and has prayed for the appointment of some other guardian of the minor. The Court, therefore, removed Vidya Nand from the guardianship of the minor and appointed Sri Uma Shan-ker Dwivedi as guardian ad litem of the minor. It is not disputed that thereafter Sri K. B. Sinha was appointed guardian ad litem of the minor. An application had been made on behalf of the applicant alleging that in view of the minor respondent not being re presented through the guardian ad litem, the first appeal filed by the plaintiff oppo site parties was incompetent against him. It was ' argued that the appeal has become time barred on the date when Sri K. B. Sinha was appointed guardian ad litem ot the applicant. The II Additional District Judge, Allahabad rejected the applicant's ap plication, hence this revision against the order of the II Additional District Judge.
(2.) THE learned Counsel for the ap plicant has reiterated his objections in this Court and has placed his reliance on: (1) Tankeshwar Das v. Bhagaban Chandra Choudhury, AIR 1968 Assam and Naga 61; (2) Sawan Ram v. Nachittar Singh, AIR 1952 Pepsu 63; (3) Arakhito Rauto v. Patito Rauto, AIR 1953 Orissa 343. His contention is that the appointment of Vidya Nand as guardian ad litem by the Trial Court continued till he was removed by the order of the Lower Appellate Court and the memorandum of appeal filed against the minor under the guardianship of his natural father Krishna Kumar was in effect an appeal filed against a minor without pro per guardian and was, therefore, a nullity. Order 32, Rule 3, sub-clause (5) reads thus: "A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death continue as such throughout all proceedings arising out of the suit including proceedings in any ap pellate or revisional Court and any proceed ings in the execution of a decree". There can, therefore, be no doubt that Vidya Nand continued to be the guardian ad litem till he was removed from the guardianship of the minor. The question, however, is whe ther the appeal was incompetent and the Court was not competent to correct the emorandum by impleading the guardian ad litem or appointing another guardian ad litem and whether the addition of the guar dian ad litem, after the period of limitation for filing the appeal had expired, will result in the dismissal of the appeal as time bar red. In Tankeshwar Das's case (supra) the decree of the Trial Court was set aside in appeal against the minors who were not represented through a guardian. The mis take was discovered in the second appeal and it was then held by the Assam and Nagaland High Court that the first appeal being incompetent the High Court was re luctant to remand the case because the ad dition of the guardian ad litem in the first appeal after the decision of the appeal would be prejudicial to the minors. The High Court also remarked that the appeal had be come barred by efflux of time. The facts of that case are quite distinguishable. In the present case, the first appeal is still pending. Swami Ram's case (supra) no doubt lays down that the appointment of guardian ad litem can take effect only from the date on which it is made and an ap peal presented by an authorised person as next friend of minor will become time bar red if the guardian ad litem or proper next friend is added after the period of limita tion.
(3.) IN Dammar Singh v. Pirbhu Singh, (1907) ILR 29 All 290, a Bench of this Court had held that: "The appointment of a guardian ad litem to a minor defendant of a person other than the certificated guardian amount ed to no more than an irregularity and would not of itself vitiate either a decree passed in a_ suit or a sale consequent upon such decree". ;