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Judgment
Macnaghten, J.—Their lordships are of opinion that the decision of the Subordinate Judge was perfectly right.
The question is whether the respondents in whose favour a former decree, made when they were infants, has been set aside, were properly represented at the hearing of the suit in which the decree was pronounced.
The objection was that the affidavit required by Section 456 of the CPC is not forthcoming. It does not appear whether in point of fact there was an affidavit or not-But assuming that there was not such an affidavit their lordships think it impossible now to hold that the infants were not properly represented at the time. The learned Judge appointed Ghulam Razzak their guardian ad litem. The order is on the record and it must be presumed, in the absence of evidence to the contrary, that everything was regularly and properly done.
The case that was referred to of Mussammat Bibi Walian v. Banke Behari Pershad Singh (1903) L.R. 30 IndAp 132 is really a much stronger case, because there the person who acted as guardian ad litcm was not formally appointed, but he was recognised as guardian ad litem by the Court in the progress of the suit, and it was held by this Board that after that recognition it was too late to dispute his appointment.
Their lordships will therefore humbly advise His Majesty that the appeal should be allowed. The respondents must pay the costs of the appeal.