N.M. Rayulu Iyer Nagasami Iyer and Co. vs Chockanarayanan Chettiar

Govinda Menon, J.—In our opinion this appeal has to be allowed and E. P. No. 88 of 1947 remanded to the Subordinate Judge of

Sivaganga for disposal on the merits. The learned Subordinate Judge has held that the execution is barred on the ground that more than twelve

years have elapsed from 14-8-1934 when this Court allowed A. S. No. 406 of 1930, and such being the case E P. No. 88 of 1947 is barred u/s

48, Civil P. C.

What happened was that for the restitution of costs realised by a decree-holder in O. S. No. 114 of 1925 on the file of the Sub-Court, Madurai

one Sattayyappa Chettiar executed a security bond in favour of the Court. In that security bond Sattayappa Chettiar stated that he himself

personally and the joint family properties belonging to him and his two sons would be made liable in case the decision in A. S. No. 406 of 1930

went against the persons on whose behalf the security bond was executed. On 14-8-1934, this Court in A. S. No. 406 of 1930 allowed the

appeal and thereby made the security bond enforceable. Thereafter by E. A. No. 750 of 1934 the plaintiff-decree-holder, who is the appellant in

this appeal, tried to enforce that security bond. To that application he impleaded as respondent 1, one minor Shanmugham Chettiar through

guardian Shanmugham Chettiar, and respondents 2, 3 and 4 respectively Sattayyappa Chettiar, the executant of this security bond and his two

sons, Arumugha Chettiar and minor Sokkanarayanan. Arumugham Chettiar was a major and Sokkanarayanan was admittedly a minor at that time.

On 24-10-1938 the Subordinate Judge of Madura found that the security bond can be enforced in execution, and decreed that respondents 1 to 4

in that application of whom respondents 2 to 4 are the persons with whom we are now concerned--should pay the principal amount of Rs. 2253-

3-1 to the plaintiff-petitioner with interest that is provided in the security bond. That is, by means of this order the agreement of the undertaking

given in the security bond was made enforceable, as if a decree had been passed thereupon. Against that order Arumugham Chettiar filed an

appeal to this Court, C. M. A. No. 364 of 1939 in which the only respondent was the plaintiff-petitioner Rayalu Iyer, Nagaswami Iyer and Co.

The father Sattayyappa Chettiar and the minor son Sokkanarayanan Chettiar were not made parties to that appeal. On 2-4-1941 this Court

consisting of Wadsworth and Patanjali Sastri JJ. allowed the appeal of Arumugham Chettiar and set aside the order of the lower Court directing

that the joint family properties of Sattayyappa Chettiar and his two sons can be proceeded against, and held that such an order would not be

binding on the share of Arumugham Chettiar or on him personally. But in their order the learned Judges have held as follows :

In this view it is unnecessary to go into the other questions that have been argued before us. We wish only to add that this decision will govern

only the parties now before us and is not intended to affect the rights of the respondent as against the other parties to the proceeding in the Court

below.

Though Sattayyappa Chettiar and Sokkanarayanan were not made parties to that appeal, still the decision arrived at by the Subordinate Judge in

E. A. No. 750 of 1934 as against Sattayyappa Chettiar and minor Sokkanarayanan was confirmed.

Now the question is what is the period of limitation for the execution of the undertaking given, in the security bond. The learned Subordinate

Judge in the Court below is of opinion that since the decree of this Court in A. S. No. 406 of 1930 was passed on 14-8-1934 that date should be

considered as the starting point of limitation from which the period will run for the enforceability of the security bond. But the learned Subordinate

Judge forgets the fact that it is not any right obtained by the decree in O. S. No. 114 of 1925 or its appeal A. S. No. 406 of 1930 that is now

sought for by the plaintiff. What the plaintiff seeks is to enforce the security bond, the enforcement of which became effective only as a result of the

Subordinate Judge deciding that it can be enforced as such without a fresh suit. This Court held as against Arumugham Chettiar that the security

bond cannot be enforced in execution. But this Court confirmed the decision of the Subordinate Judge regarding the enforceability of the security

bond against Sattayyappa Chettiar and his minor son Sokkanarayanan Chettiar; and that order was made on 24-10-1938. More than 12 years

have not elapsed since that date when E. P. No. 88 of 1947 was filed. Therefore in our opinion Section 48, Civil P. C. will not be a bar against the

enforceability of the security bond. The cause of action for enforcing that arose in favour of the plaintiff only by the order of the Subordinate Judge

dated 24-10-1938. Therefore the learned Subordinate Judge is in error in thinking that the terminus a quo started from 14-8-1934, the date of the

decision in A. S. No. 406 of 1930, when this Court reversed the decision of the lower. Court in O. S. No. 114 of 1925. We are, therefore of

opinion that the execution petition is not barred by limitation.

The next point decided against the appellant by the lower Court is that when E. P. No. 88 of 1947 was filed by the plaintiff petitioner for

execution of the security bond, Sokkanarayanan Chettiar, the contesting respondent, was a major, and therefore the proceedings taken with regard

to the sale of properties consequent upon the orders in E. P. No. 88 of 1947 would not be binding on him & such being the case no property

could be sold in execution. The learned Judge did not rely upon any decision in support of the view taken by him, but he was of opinion that at the

time when the orders in execution were made in E. P. No. 88 of 1947 Sokkanarayanan had become a major, and such orders should be treated

as null and void so far as he js concerned, and would not have any legal effect. It is settled in this Court by a long line of cases that if, at the

inception of a certain proceeding or at the time a suit is instituted a party is a minor represented by a guardian, but during the course of the

proceeding or the suit he becomes a major and a decree is passed on the footing that he was only a minor, such a proceeding would be binding on

the erstwhile minor, if he had not been declared a major at the time of the decree or a final order. The decisions in support of this proposition are -

-''Sanyasi v. Verran Naidu'' AIR 1928 Mad. 294 (A), --''Sundaram Reddi v. Pattabhiramiceddi"" AIR 1918 Mad 545 (B), -- Madduri Venkata

Someswara Rao alias Venkata Subbanna, minor by guardian and natural father, Kumaraswami Sastri Vs. Pulavarty Lakshmanaswami, -- V.K.

Murugappa Mudaliar Vs. P.M. Desappa Nayanim Varu and Others, . As against these decisions Mr. K. S. Rambhadra Aiyar for the respondent

Sokkanarayanan invites our attention to a decision in -- ''Tanguaturi Jagannadham v. Seshagiri Rao'', AIR 1917 Mad 42, (E), where the learned

Judges reviewing the decision reported in -- ''Seshagirirao v. Tanga-tun Jagannadham'', AIR 1917 Mad 318 (F) came to the conclusion that the

proceedings therein would not be binding on the erstwhile minor. This case, namely, --AIR 1917 Mad 42 (E) came up for consideration in the

latest case V.K. Murugappa Mudaliar Vs. P.M. Desappa Nayanim Varu and Others, . The learned Chief Justice in delivering the judgment

adverted to this decision at page 316 & observed as follows:

Learned counsel for the contesting respondents was_ unable to point out any such specific provision in the Code. He relied on the ruling in --''AIR

1917 Mad 318 (F), in support of his contention that a sale held without notice to one of the judgment-debtors who was a major but who had been

wrongly described as a minor was liable to be set aside at the instance of that judgment-debtor. In that case the judgment-debtor was wrongly

treated as a minor throughout the execution proceedings from their very commencement. Actually he had attained majority even before the decree

though he was a minor at the time of the institution of the suit. That was not a case in which a judgment-debtor was a minor at the time of the

commencement of the execution proceedings but had attained majority during the continuance of such proceedings. That case can be likened to a

suit against a major described wrongly as a minor. Strictly speaking, such a person cannot be deemed in law to have been a party at all to the suit.

On the same analogy, if a person, who was a major at the time of the commencement of the execution proceedings, was throughout the

proceedings wrongly described as a minor and notice never went to him as a major, the result would be that the entire proceedings were without

notice to him. A sale held in the course of such execution proceedings certainly cannot bind him. That, however, is not the case here.

Now in our opinion these observations cf the learned Chief Justice apply appositely to the present case. At the time tne security uond was declared

as executable against Satayyappa Chettiar and Sokkanarayanan by the Subordinate Judge on 24-10-1938, admittedly Sokkana-rayanan was a

minor. There is no dispute about that. Later on it is seen that E. P. No. 87 of 1947 was filed for the relief of enforcing the security bond. That for

some reason or other became infructuous. Another petition E. P. No. 13 of 1944 was also filed. At the time all these proceedings took place

Sokkanarayanan was admittedly a minor. Therefore at the commencement of the execution proceedings Sokkanarayanan was a minor and when

E. P. No. 88 of 1947 which was only a continuation of the earlier proceedings, was inaugurated, even if Sokkanarayanan had become a major by

that time, it should be taken that such proceedings cannot be declared null and void at the very inception. Applying the observations of the learned

Chief Justice in V.K. Murugappa Mudaliar Vs. P.M. Desappa Nayanim Varu and Others, , to this case, if on 24-10-1938 Sokkanarayanan had

become a major, but had been proceeded against as a minor, then probably the decision in -- '' AIR 1917 Mad 42 (E)'', will apply. We are

therefore of the opinion following the long course of decisions of this Court that the proceedings upto time at which Sokkanarayanan came to file

the application for postponing the sale are binding on him unless he can by separate proceedings say that there was fraud ''practised upon him. It

seems to us, therefore, that the learned Subordinate Judge was wrong in this also.

Another way of looking at the question is that on a previous occasion in the same E. P. No. 88 of 1947 on 8-4-1948 the same Subordinate

Judge who has now held that the execution cannot proceed against Sokkanarayanan has negatived his contention & held that the execution can be

proceeded against him. This order must in the natural course of events be binding on Sokkanarayanan, as res judicata, in execution proceedings.

For this purpose if authority is required we may refer to the reasoning in -- S.T.M. Vyravan Chettiar Vs. R.M. Rayalu Ayyar Nagaswami Ayyar

and Co., . For all these reasons we cannot subscribe to the view put forward by the learned Subordinate Judge that the petition is barred by

limitation. We there fore set aside the order of the Subordinate Judge and remand the application to the lower Court for disposal on the merits.

The appellant will be entitled to the costs of this appeal.