Wanchoo, C. J. - (1.) THIS is an appeal by Rajkumar minor through his next friend Mst. Bhagwati Bai against the order of the District Judge of Pratabgarh refusing to set aside the ex parte decree dated 1st November. 1950.
(2.) THE facts which have led to this appeal are these : A suit for specific performance of a contract for sale was filed by Kishenlal and three others against nine defendants including Rajkumar minor. THE plaintiffs applied for making Laxminarain, elder brother of Rajkumar, as guardian of minor but Laxminarain refused to act as such. THEreupon an application was made for making Mst. Bhagwati Bai, mother of the minor, as guardian. Attempts were made to serve Mst. Bhagwati Bai in the ordinary way but failed. THEreafter substituted service was effected on her by means of publication of a notice in a paper named "navjeewan". THE notice was published on the 28th August 1950 and Mst. Bhagwati Bai was asked to appear on the 23rd of September 1950 to show cause whether » she had any objection to her appointment as guardian. She never appeared even after this notice and thereafter the suit was decreed ex parte on the 1st of November 1950. An application for setting aside the ex parte decree was made on the 30th November 1950 by Mst. Bhagwati Bai as the next friend of her minor son Rajkumar. The District Judge has dismissed this application on two grounds: (1) that the point that Mst. Bhagwati Bai never consented to her appointment could be taken in appeal or review and not application under Order IX, rule 13, Code of Civil Procedure, and (2) that the application under O. 9, R. 13 has not been presented by a person authorised to do so. We shall deal with the second point first. The application was presented on the 30th November 1950 by Shri Harnarayan Advocate. On the same day, he presented another application for inspection of the file. A vakalatnama was also presented on the same day. The learned District Judge says that the vakalatnama was presented along with the application for inspection and that there was no vakalatnama with the application under O. 9. R. 13 and, therefore, Shri Harnarayan had no authority to present that application. The case of the appellant is that all the three documents were presented together. Considering that the three documents were presented in the court on the same day by the same person, it seems to us that the case put forward on behalf of the appellant is reasonable and should be accepted. It may be added that there is nothing on the record to suggest that the vakalatnama was presented with the application for inspection and that the application under Order IX, rule 13, C. P. C. was presented some time later on. No evidence was taken by the learned District Judge on this point and under these circumstances we must hold that the three documents were presented at the same time and the vakalatnama covered both the application for inspection as well as the application under O. 9. R. 13. It was then urged on behalf of the respondents that the vakalatnama did not authorise counsel to present an application under O. 9. r. 13 and that in any case it appears to have been signed by Mst. Bhagwati Bai in her personal capacity and not as next friend of Rajkumar and, therefore, did not authorise counsel to file the application under 0. 9, R. 13. We have gone through the vakalatnama and we are satisfied that there are general words in it which authorised the counsel to file an application of this nature. At the place where Mst. Bhagwati Bai has signed her name she has not said that she was doing so as next friend of Rajkumar, but at the top of the vakalatnama where the parties are mentioned the name of Rajkumar has been specifically mentioned and Mst. Bhagwati Bai has been shown as his guardian. Mst. Bhagwati Bai was no party to this suit and under the circumstances we think that the vakalatnama was and could only have been executed by her in the capacity of next friend of Rajkumar. There is no force, therefore, in this point. We now come to the question whether Rajkumar minor was not duly served within the meaning of O. IX, R. 13, C. P. C. As he is a minor, service could only have been effected on him through a guardian properly appointed in this behalf under the provisions of O. XXXII. R. 4 (3) of that Order provides specifically that no person shall be appointed guardian for the suit without his consent. Further rule 4 (4) makes a provision that in those cases like the present where it is not possible to get hold of a relation or a friend to act as guardian for the suit, an officer of the court is appointed guardian for the purpose. We have already said that Laxminarayan, elder brother of the minor Rajkumar, refused to act as his guardian and thereafter attempts were made to serve Mst. Bhagwati Bai. She was never actually served and the attempt to serve her by substituted service was, in our opinion futile because no consent could be presumed in such circumstances by her omission to appear. There was, thus, no guardian properly appointed under Order XXXII in this case, and any publication of the notice addressed to Mst. Bhagwati Bai could not possibly be due service of summons on the minor. The ex parte decree must, under the circumstances, be set aside against Rajkumar. Learned counsel for the appellant urges that the whole decree should be set aside against all defendants as under the proviso to Order IX, rule 13, the decree is of such a nature that it cannot be set aside against such defendant only. We are, however, of opinion that in a suit for specific performance the decree is not of such a nature that it must be set aside against all the defendants. There is nothing to prevent the sale-deed being executed by the remaining defendants and the vendee will take the consequences of the sale-deed being executed by some of those who were party to the contract of sale. We, therefore, allow the appeal and set aside the ex parte decree against Rajkumar minor only. The minor will get costs of these proceedings from the respondents. The suit will be tried as against Rajkumar minor. . ;