Kamleshwari Prasad Singh vs Shivachandra Bose and Others

Manohar Lall, J.—This is an appeal by the judgment-debtor. The only question for decision is whether the application for execution of the decree was barred by limitation.

The facts sufficient for the disposal of this appeal are clearly set out in the order of remand dated 9th January 1916. It is enough to say that the decree under execution was passed on 33rd June 1932 and the application for execution was made on 22nd May 1944. Apparently the execution of the decree was barred by limitation on that date. But limitation is sought to be saved on the ground that some of the co-decree-holders were under the disability, that they were below the age of 18, and therefore, by the operation of Section 7, Limitation Act, the decree could be executed on 22nd May 1944.

There are five decree-holders in this case, namely, Shib Chandra Bose, decree-holder 1, who is the uncle of the other four decree-holders, namely, Santosh, Sudhir, Subhir and Nemai. These last four decree-holders are the sons of one Atul Krishna Bose.

In the order of remand by this Court, it was pointed out that the Subordinate Judge, who disposed of the objections of the judgment-debtor, ought to have taken evidence and come to a definite finding as to whether these decree-holders had attained majority more than four years before the filing of the execution petition as was alleged in the objection. Accordingly the case was remanded so that evidence may be taken in support of the respective contentions of the parties and the Subordinate Judge was directed to come to a clear finding as to when the four co-decree-holders attained majority, and secondly whether discharge could be given u/s 7, Limitation Act by one of the decree-holders without the concurrence of the others before the execution was levied. It may be stated here that all the decree-holders belong to the Dayabhaga School of Hindu law.

The learned Subordinate Judge after taking evidence has come to the conclusion that the evidence and circumstances lend support to the applicant''s contention that the decree-holder Nemai Kumar Bose had attained majority before the execution petition was filed and that the weight of evidence and the probability is decidedly in favour of the view that Nemai had already attained majority when the present execution petition was filed. He also held that in respect of the shares of decree-holders 2 to 5 in the decree under execution only their mother as their natural guardian had legal capacity to give a valid discharge on their behalf during the continuance of their minority.

At the hearing of the appeal, Mr. G.C. Mukharji cited a large number of authorities in support of the view that the learned Subordinate Judge was wrong in holding that a valid discharge could be given by the natural guardian of these four co-decree-holders. He referred to the cases of Amino Bibi v. Rama Shankar Misra A.I.R.1919 ALL. 297, Latchmana Chetty v. Subbiah Ghetty AIR 1925 Mad. 78 , Abed Hossain Mia and Others Vs. Abdur Rahaman Saha Choudhury, and other cases. In our opinion the contention raised by the respondents is correct and is supported by the principle laid down by the Judicial Committee in the case of Ganesha Row v. Tuljaram Row 40 I.A. 132: and also by the view taken by the Calcutta High Court in Abed Hossain Mia and Others Vs. Abdur Rahaman Saha Choudhury, . It is only in a case where a co-decree-holder could give a valid discharge that Section 7, Limitation Act, will not extend the period of limitation. The natural guardian of these four sons was not a co-decree-holder in the present case, and therefore, she could not give a valid discharge on their behalf during the continuance of their minority. It is needless to pursue the matter further because Mr. Sarkar on behalf of the judgment-debtor was not in a position to bring to our notice any other authority which had taken a contrary view. Accordingly, it must be held that the provisions of Section 7, Limitation Act could be applicable in favour of the decree-holders.

But this does not end controversy. Mr. Sarkar then contended that on the finding of the Subordinate Judge that Nemai had attained majority before 22nd May 1944, the application for execution must be treated as being incompetent as in it Nemai is described as being under the guardianship of Sudhir Kumar Bose and that in the proceedings in the executing Court he appeared through his mother. Mr. G.C. Mukharji on the other band, contends that the finding of the Subordinate Judge is based upon pure sur-mise and conjecture and on the materials on the record he should have believed the uncle, Shib Chandra Bose, who was the most competent person to depose as to the age of Nemai.

We have read the evidence in the case which consists of the evidence of two school students on behalf of the judgment-debtor and of Shib Chandra Bose, himself, a co-decree-holder, on behalf of the respondents. We are satisfied that there is no reason whatsoever to disbelieve the evidence of Shib Chandra Bose who is aged 60. [His Lordship after discussing the evidence, proceeded.]

The result is that the application for execution must be treated as having been filed within the period of limitation fixed by the statute. I would dismiss this appeal but in the circumstances there will be no order for costs of this Court or of the remand.

Imam J.

I agree.