Parmeshwari Singh and Others vs Ranjit Singh and Others

Wort, Ag. C.J.

This appeal is by the judgment-debtor against the order of the District Judge allowing the appeal against the decision of the Subordinate Judge in an execution case. The only point was whether the application for execution is barred by limitation. The first execution was taken out on 26th September 1935, and the decree having been obtained on 28th January 1932, in favour of four persons, the grandfather who was the karta of the family, his sons and a grandson who was a minor, it is clear that the application would be barred by limitation unless some provision of the Limitation Act could be called to the aid of the decree-holders. The decree-holders rely upon Section 7 of that Act.

Section 7 provides that where one of several persons who are jointly entitled to make an application or to institute a suit is under a disability, the question whether that disability enures to the benefit of the other decree-holders or applicants depends upon applying the test whether the persons who are not under a disability could give a discharge without the concurrence of the person under such disability. I do not think there can be any doubt in this case that the grandson (the minor) appeared by his nearest friend, whoever that may have been, probably his grandfather. There are certain references in the record which lead us to suppose that to be the case.

At one stage of the argument, it was thought necessary to send for the record of the case for the purpose of determining whether a guardian had been appointed by Court but at that moment there was some misapprehension and it is now clearly seen that no such application is necessary having regard to the fact that the minor was amongst the applicants and not a defendant or respondent to the application. We must therefore act on the assumption that the minor, as I have said, appeared by his next friend whether he appeared by the next friend (the minor being the applicant) or whether he appeared by his guardian ad litem (being defendant to the suit or respondent to the application in execution), Order 32, Rule 6, equally applied which is mandatory and is mandatory in the sense that no compromise can be entered into without the leave of the Court. Therefore we have to apply the test of Section 7 on the assumption, in this case that the grandfather could not give a discharge on behalf of the minor.

The proposition, I think, clearly appears from the decision of certain cases which are referred to by the Chief Justice in Latchmana Chetty v. Subbiah Chetty A.I.R (1925) Mad. 78. Dealing with this question, the learned Chief Justice pointed out that there was a number of decisions on this point, culminating in the decision of the Madras Court in Ganesha Row v. Tulja Ram Row (1909) 21 M.L.J. 1093 That case as it appeared to the learned Judges of the Madras Court was this The party there being a defendant or respondent and being a minor was represented by a guardian ad litem and the question arose as to whether a discharge could be given. There was an inhibition with regard to a discharge without the consent of the Court under Order 32, Rule 6 so far as regards the father or the managing member was concerned in his capacity as guardian ad litem. But the learned Judges came to the conclusion that there was no such inhibition with regard to that person as managing member of the joint Hindu family and therefore as a representative of the minor member.

The case came before their Lordships of the Privy Council Ganesha Row v. Tulja Ram Row (1913) 36 Mad. 295, and the effect of the decision it clearly appears, was that the inhibition as regards one capacity would apply also to a person in his other capacity: in other I words when once a person is appointed a guardian ad litem or, (as in this case) appears as a next friend, Order 32, Rule 6, equally applies and there being an inhibition, the test laid down by Section 7, Limitation Act, applies. Applying that test, we conclude that the next friend could not give a discharge and therefore limitation did not run as against the other persons, that is to say, persons other than the minor.

Then it was contended that if limitation did not run and the minor was entitled to bring his application for execution after the disability had disappeared, the application for execution was premature. The answer to that case seems to me to be clearly provided by the case in . Phoolbus Koonwur v. Jogeshur Sahoy (1875) 1 Cal. 226. In my judgment, therefore, the decision of the learned Judge in the Court below was right. The appeal must therefore be dismissed with costs.

Manohar Lall J.

I entirely agree.