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7. Learned Counsel for the petitioner also relied on the decision of this Court in the case of (Smt) Lilaben Ramniklal and Ors. v. Vithaldas Tulsidas and Ors., reported in 1984 GLH 951, wherein it has been held that it is considered that the question is whether because of this want of formality of appointing the mother, the natural guardian, as a guardian ad litem, the decree stands vitiated or not. This is a sheer formal or technical lacuna which does not vitiate the solemn judgment and the decree. In the case on hand, there was a registered document executed by the predecessor-in-title of these minors. The mother had engaged an Advocate not only for herself but specifically for her minor children also. She had filed the written statement also even on their behalf. The mortgage being a registered one and executed by the deceased's predecessor-in-title there was not anything that could be challenged by the minors. No prejudice whatsoever could have been conceivably caused to the minors.

8. As such, the contention of the learned Counsel for the petitioner is that the provisions of Order 32, Rule 3(4) of the C.P.C. are not mandatory and it is not obligatory on the part of the Court to appoint a guardian for a minor defendant where the minor is being properly represented by his natural guardian parents, father or mother, particularly there is no allegation of adverse interest or the interest of the minor child would be jeopardized for any cause and secondly where specific law has been provided for a particular action the general law will not be applicable and the specific provision in that regard would be attracted in that respect and will prevail over general law. The provision of C.P.C. regarding appointment of guardian of minor are of general law while the provisions of Guardians & Wards Act are special provisions for appointment of guardian of a minor in a suit proceedings.

"3(4). No order shall be made on any application under this rule except upon notice and to any guardian of the minor appointed or declared by an authority competent in that behalf, or where there is no such guardian, upon notice to the father or there is no father, to the mother, or where there is no father or mother, to other natural guardian of the minor, or where there is no father, mother or other natural guardian, to the person in whose care the minor is and after hearing any objection which may be urged on behalf of any person served with notice under this Rule.

(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting prejudice to the interest of the minor.

18. On the basis of the statutory provisions of Rule 3A of Order 32 of the C.P.C., it is evident that even the next friend or guardian of a minor has adverse interest, it would not be sufficient ground for setting aside the decree passed against a minor unless it is established that prejudice has been caused to the interest of the minor by adverse interest of the guardian or next friend of the minor. It is also mandatory requirement that notice to father or mother or natural guardian or any person under whose care the minor is and minor has to be issued and served with a notice and a reasonable opportunity of hearing of any objection if raised has been provided. Thus, where a minor is properly represented by his/her father or mother or natural guardian, it is not necessary at all in all cases that guardian or next friend should be appointed by the Court. The Court is required to see that the interest of the minor is properly represented through his/her parents or guardian in the suit. On the basis of the discussion, I am constrained to hold that the word "shall" referred in sub-rule (1) of Rule (3) of Order 32 of the C.P.C. is only directory and not mandatory. But where minor is not properly represented by his father, mother, natural guardian or father or mother, natural guardian who has adverse interest in the subject-matter of the suit to the interest of the minor and there is likelihood of cause or interest of the minor is jeopardized or prejudiced then the word "shall" referred in sub-rule 3 of Rule (1) of Order 32 of the C.P.C. is mandatory then the Court is under obligation to appoint his guardian or next friend under the procedure prescribed therefore.