Periasami and Others vs Krishna Ayyan and Others

Arnold White, C.J.—The question which has been referred to a Full Bench is as follows: ""When there are two or more joint decree-holders,

and the execution of the decree is barred by limitation as against one or more of them, whether one who is not so barred owing to minority can

execute the decree for the benefit of all or, if not, for his own benefit alone? ""In other words, whether the minority of one of several joint decree-

holders saves the execution of the decree from being time-barred during the minority of the minor plus three years.

In the case in which the order of reference was made, the material facts and dates were as follow: On June 30th, 1892, a joint decree was

passed in favour of three brothers who, at the date of the decree, were all minors. On January 8th, 1896, the last application for execution

previous to the present application was made. At this date two of the brothers had attained majority and one was minor. On February 25th, 1899,

the present application was made. The youngest brother had attained majority less than three years before the application.

The first question for determination is--Are joint execution-creditors ""joint creditors"" within the meaning of Section 8 of the Limitation Act? In

my opinion they are not. This view has been adopted by all the High Courts. See Seshan v. Rajagopala ILR 13 Mad. 236 Anando Kishore Dass

Bakshi v. Anando Kishore Bose ILR 14 Calc. 50 Zamir Hasan v. Sundar ILR 22 All. 199 and Govindram v. Tatia ILR 20 Bom. 383.

As regards Section 7 I think the section only applies where all the joint execution-creditors were under disability at the time the period of

limitation began to run. With reference to this point the Madras decisions are in conflict with those of the other High Courts. In the case of

Govindram v. Tatia ILR 20 Bom. 383 their Lordships say, ""Under the provisions of Section 231 of the Civil Procedure Code, the minor was

entitled equally with the other judgment-creditors to apply for execution of the whole decree for the benefit of all the decree-holders; and as he

was a minor when the decree was passed, and when the last application for execution was made, he is entitled to the benefit of Section 7 of the

Limitation Act, and can apply for execution within three years of attaining majority""; and they held that the reasoning in Perry v. Jackson 4 T.R.

519 did not touch the point ""inasmuch as Section 7 applies to an application like the present one which any one of the judgment-creditors may

present by himself under the provisions of Section 231 of the Civil Procedure Code."" Now, Section 231 merely empowers the Court, where there

is a joint decree in favour of more persons than one, to make an order, on the application for execution of one or more of the joint decree-holders

for the benefit of all, for protecting the interests of the persons who have not joined in the application if the Court sees sufficient cause for allowing

the decree to be executed. I do not see how a rule of procedure such as this can be prayed in aid for the purpose of construing the words ""persons

entitled to...make an application"" in Section 7 of the Limitation Act. It seems to me these words mean a person entitled to make an application on

his own behalf, and that their meaning is not affected by the fact that by a rule of procedure the Court has a discretion, in a certain case, to make

an order which shall enure for the benefit of parties who have not joined in the application. The word in Section 7 of the Limitation Act is ""entitled.

That means entitled as of right. The phraseology of Section 231 of the Code shows clearly that the order which by that section the Court, in the

exercise of its discretion, is empowered to make, cannot be asked for as of right. In the case of Zamir Hasan v. Sundar ILR 22 All. 199 the Court

upon this point concurred with the Bombay decisions above referred to, and the Calcutta decisions Lolit Mohun Misser v. Janoky Nath Roy ILR

20 Calc. 714 and Norendra Nath Pahari v. Bhupendra Narain Roy ILR 23 Calc. 374 are to the same effect.

The question has again been recently considered by the Calcutta High Court in the case of Surja Kumar Butt v. Arun Chunder Roy ILR 28

Calc. 465 and the learned Judges re-affirm the view which had been taken by the Calcutta High Court and dissent from the Madras decisions. I

have carefully considered the reasoning on which their decisions are based, and, with all deference to the learned Judges of the other High Courts,

I am of opinion that the oases of Seshan v. Rajagopala ILR 13 Mad. 236 and Vigneswara v. Bapayya ILR 16 Mad. 436 were, as regards the

point in question, rightly decided.

There remains the question when does the period of limitation for the execution of the decree begin to run. I am unable to adopt the view taken

by the learned Judges in the case of Lolit Mohun Misser v. Janoky Nath Roy ILR 20 Calc. 714 that if the person entitled to execution is under a

disability at the time when any one of the starting points referred to in the third column of Article 179 commences, the operation of the Limitation

Act is suspended during the continuance of the disability. It seems to me that the effect of paragraphs 2, 3, 4, 5 and 6 of the fourth column is to fix

one starting point in the events referred to respectively in these paragraphs, and not to leave it open to the party who seeks the benefit of Section 7

to select his own starting point. It seems to me clear that where there has been an application according to law to the proper Court for execution,

the period begins to run from the date of that application. The first paragraph of column 3 of Article 179 of the second schedule to the Limitation

Act provides the time when in the absence of the circumstances referred to in the succeeding paragraphs the period begins to run--that is the date

of the decree. Paragraph 4 of the 3rd column says expressly that where there has been an application for execution in accordance with law, the

period begins to run from the date of the application. This is one of the exceptions engrafted on the general rule laid down in the first paragraph.

The facts of the present case come within the exception. I think the application made in 1896 was ""in accordance with law"" although it may have

been informal, and when the application was made, all the joint decree-holders were admittedly not under disability. Explanation 1 to the 3rd

column of Article 179 states that if the decree is a joint decree in favour of more persons than one an application by one of such persons provides

a fresh starting point in favour of all, but the explanation throws no light on the question whether, if, at the time the Statute begins to run from the

fresh starting point, some of the persons are under disability and some are not, the persons not then under disability are entitled to the benefit of

Section 7 of the Act.

In the present case the decree was a joint decree and it seems to me that it is no longer executable as a joint decree, and I see no reason for

holding that, although it is not executable as a joint decree, it is executable quoad the interest of one of the decree-holders, that is as a decree

under which the interests of the joint decree-holders have become severed.

Davies, J.

I concur.

Benson, J.

I concur.

Moore, J.

I concur.

Bhashyam Ayyangar, J.

In my judgment in Appeal No. 28 of 1900 decided on the 28th August 1901, (Ahinsa Bibi v. Abdul Kader Saheb ILR 25 Mad. 26 I had to

consider the application of Sections 7 and 8 of the Limitation Act to a suit for an account and a share of the profits of a dissolved partnership

brought by the legal representatives of a deceased partner, one of whom was a minor at the time of the death of that partner. In expressing my

concurrence with the decision of this Court in Seshan v. Rajagopala ILR 13 Mad. 236 in so far as it bears upon the construction of Section 7

taken by itself and independently of Section 8, I stated as follows: ""In cases in which the right of suit vests jointly in a plurality of parsons I am

clearly of opinion that if Section 7 stood by itself and Section 8 had not been enacted, the protection given by Section 7 will extend only to oases in

which each and all of the persons jointly entitled to sue were affected by disability at the time from which the period of limitation is to be reckoned

and that if any one of them was then free from disability, the suit would be governed by the ordinary law of limitation and Section 7 cannot be

availed of by all or any of them for the simple reason that the cause of action is a joint one."" Adverting then to Section 8, I stated that though it did

not expressly provide, (as the latter part of the corresponding Section 8 of Act IX of 1871 did) ""that in a case in which one or some alone of the

persons entitled to sue were affected by disability at the time when the cause of action accrued jointly to all the persons entitled, time will not run

against any of them if a complete discharge of the obligation could not be given by one or more of the persons free from disability without the

concurrence of the person or persons labouring under disability,"" yet that was necessarily implied in the former part of the section. I then deduced

the following propositions from the combined operation of Sections 7 and 8 in a case in which the right of suit resides jointly in a plurality of

persons: ""(a) such suit cannot be barred in part in respect) of some and not barred in part in respect of the others; (b) if any one of several joint

creditors or claimants is under a disability and a full discharge could be given without his concurrence by all or any of the other joint creditors or

claimants, the suit will be governed by the ordinary law of limitation and time will run against all; (c) but where no such discharge can be given, time

will not run against any of them until all have ceased to be under disability; (d) if all were affected by disability, time will not run against any of them

untill all have ceased to be under disability, unless one of them, who in the meanwhile has ceased to be under disability becomes capable of giving a

complete discharge without the concurrence of the others, in which latter case, time will run against all from the time when one of them has thus

become capable of giving such discharge illustration (b) to Section 8, Cf. Anando Kishore Dass Bakshi v. Anando Kishore Bose ILR 14 Calc. 50

As the deceased partner was governed by the Muhammadan Law, I held that none of his legal representatives who were coheirs was, within

the meaning of Section 8, competent to give a discharge which would bind the minor heir and that therefore the third of the above propositions, viz.

(c), was applicable to the suit and that the same was therefore not barred by the Law of Limitation.

The question referred to the Full Bench in the present case involves the application of Sections 7 and 8 of the Limitation Act to the execution of

a decree awarding a sum of money to three brothers, members of an undivided Hindu family, who being all minors were represented by their

mother as next friend. The decree was passed on the 30th June 1892 when all the three joint decree-holders were minors. The present application

for execution was made on the 25th February 1899 by all the three brothers as joint decree-holders, having all attained their majority by that time,

the youngest and he alone within three years prior thereto. The last preceding application for execution was made more than three years prior to

the present application, i.e., on the 8th January 1896, when two of the brothers had attained majority and the youngest alone was a minor. For the

purposes of this reference, I shall assume that that application was made in accordance with law.

The question referred is whether the youngest brother can execute the decree for the benefit of all, or if not, whether he can execute it for his

own benefit alone. If joint decree-holders are ""joint creditors"" within the meaning of Section 8, it will follow, in my opinion, that the application of

the 25th February 1899 is not obnoxious to the Law of Limitation whether the same be regarded as an application for execution of the whole

decree made by the youngest brother alone u/s 231, Civil Procedure Code, or by all the three brothers jointly, inasmuch as no discharge of the

decree could validly be given either by the senior of the major brothers or by both without the concurrence of the youngest. Section 257, Civil

Procedure Code, expressly provides that all money payable under a decree, should be paid, unless otherwise directed by the decree, either (a)

into the Court whose duty it is to execute the decree, or (b) out of Court to the decree-holder. I need hardly add that the expression ""decree-

holder"" in the singular will include also the plural and if the decree be in favour of two or more persons as joint decree-holders, the amount should

be paid to all of them Tarruck Chunder Bhuttacharjee v. Divendra Nath Sanyal ILR 9 Calc. 831 just as if the amount were paid into Court it will

have to be drawn from the Court by all of them under a joint receipt. Even assuming that, as held in Barber Maran v. Ramana Goundan ILR 20

Mad. 461 a release by one of several joint promises without the knowledge or concurrence of the others, will, under the Indian law, bind such

others, such a doctrine will not be applicable to the case of judgment-creditors in regard to whom the processual law as laid down in Section 257,

Civil Procedure Code, will have to be strictly observed. A payment made out of Court only to one of several joint decree-holders cannot bind the

others unless he was also constituted, by them, an agent for the purpose, in which case alone the payment can be recorded as certified u/s 258,

Civil Procedure Code. The mere fact that one of the joint decree-holders is the managing member of an undivided Hindu family consisting of the

joint decree-holders will not empower him to give a valid discharge of the decree-debt, without the concurrence of the remaining members, any

more than it will empower him to execute the whole decree, as of right, without the concurrence of the remaining decree-holders. u/s 231, Civil

Procedure Code, any one of several joint decree-holders, constituting a Hindu family, whether he be the managing member or not, may, if the

Court sees sufficient cause, be allowed to execute the whole decree and in that case the Court should pass such order as it deems necessary for

protecting the interests of the persons who have not joined in the application. As a general rule such order will be a direction to the applicant for

execution to furnish sufficient security for the protection of the interests of such persons. If payment be made, out of Court, to a sole decree-holder

or several joint decree-holders, as the case may be, such payment will of course be a sufficient discharge of the decree-debt [vide Section 259

(b)] and it is not the act of the Court in recording such payment as certified that operates as a discharge, as held in Seshan v. Rajagopala ILR 9

Calc. 831 and Zamir Hasan v. Sundar ILR 20 Mad. 461. u/s 258, Civil Procedure Code, the act of the Court simply consists in recording

satisfaction, if the decree-holder or decree-holders certify to the Court payment to them out of Court or if such payment is proved by the

judgment-debtor, adversely to the decree-holder or decree-holders, within the time prescribed by Article 173A of the 2nd schedule to the

Limitation Act. A discharge not so recorded cannot be recognized by the Court executing the decree, since, for purposes of executing the decree,

such record is by Statute made indispensable evidence for proving the alleged discharge. But payment to one or some of several joint decree-

holders cannot operate as a discharge of the decree-debt, nor be recorded as certified u/s 258, Civil Procedure Code, unless, of course, such

person or persons were duly authorised by the others to accept such payment in entire or partial satisfaction of the decree. In the case of a sole

decree-holder or one of several joint decree-holders being a minor, his next friend or guardian for the suit, whoever he may be, cannot, u/s 461,

Civil Procedure Code, without obtaining leave of the Court and as a general rule also furnishing security, receive any money payable under the

decree solely to the minor or to him jointly with the other � decree-holders.

It has been held by all the High Courts Seshan v. Rajagopala ILR 13 Mad. 236 Govindram v. Tatia ILR 20 Bom. 383 Anando Kishore Dass

Bakshi v. Anando Kishore Bose ILR 14 Calc. 50 and Zamir Hasan v. Sundar ILR 22 All. 199 that Section 8 of the Limitation Act is not

applicable to execution-creditors and I fully concur in that view, though if I understand aright the reasoning on which it is based, I must, with all

deference, say that the reasoning does not warrant the conclusion arrived at, but would lead to the opposite conclusion. My reasons for holding

that execution-creditors are altogether outside the scope of Section 8 are that they were so under the corresponding Section 8 of Act IX of 1871,

and that though the said section was altered by Act XV of 1877, in respect of its latter half,--which is necessarily implied by the first half by

substituting in place of the latter half a proviso that limitation is to commence from the time when one of several joint creditors or claimants who

were all labouring under disability becomes capable of giving a discharge, thus modifying Section 7,--yet its scope was not extended as in the case

of Section 7. The corresponding Section 7 in Act IX of 1871 was confined to suits only and Section 8 in that Act could therefore relate only to

suits. When Act XV of 1877 was passed the scope of Section 7 was enlarged by including therein ""applications"" also, the result of which was that

so far as Section 7 was concerned, as in the case of suits, so in the case of applications, if the person or persons entitled to make the application

were, at the time from which the period of limitation was to be reckoned, all under disability, that application could be made within the period

prescribed, after all of them had ceased to be under disability. If the Legislature intended to give a similar extension to the scope of Section 8, the

expression ""when one of several joint creditors or claimants is under any such disability,"" may naturally be expected to have been altered into

when one of several joint creditors or claimants or one of several persons jointly entitled to make an application is under any such disability."" The

absence of such or similar alteration clearly shows that execution-creditors and persons entitled to make applications during the course of a suit

were not brought within the purview of Section 8. The reason seems to me to be obvious. Whether or not one of several joint creditors or

claimants can, according to the general law or the personal law governing them give a discharge binding upon the others--which is the criterion on

which Section 8 proceeds--can well apply to claims or obligations for the enforcement of which, suits have to be brought; but in the case of

applications which are governed by processual law such a criterion is inapplicable inasmuch as one of several persons entitled jointly to make an

application, can, without the concurrence of the others, give no valid discharge binding upon all, in respect of the matter of the application.

The word ""creditor"" in its general sense denotes a person ""who has a right by law to demand and recover of another a sum of money on any

account whatever"" (Anderson''s ''Dictionary of Law'' at page 291) and standing by itself I doubt if it includes a ""judgment-creditor"" or an

execution-creditor,"" the former denoting ""one whose claim has been merged into a judgment against his debtor and under which generally

execution may be had"" and the latter ""a creditor who has obtained a levy upon property belonging to his debtor.

Section 8 being for the above reasons inapplicable to an application for execution presented by decree-holders, the only question which has

now to be considered is whether with reference to Section 7 of the Limitation Act, the application is or is not barred under Article 179.

The first question which presents itself upon the facts of this application is the determination of the date referred to respectively in the various

clauses in column 3 opposite Article 179 of the 2nd schedule, from which date the period of limitation is to be reckoned. The dates referred to in

clauses, 2, 3, 5 and 6 are, upon the facts already stated, inapplicable to the present case. If it ware optional with the decree-holders to elect the

date referred to in Clause 1, i e., the date of the decree (30th June 1892) when they were all minors, in preference to the date referred to in Clause

4, i.e., the date of the last preceding application (8th January 1896) when only one of them was a minor, the matter is simple enough and according

to the decisions of all the High Courts the present application, which was made within three years after the youngest brother attained the age of

majority, will not be barred by the law of limitation. The different dates, subsequent to the date of the decree, referred to in the various clauses of

Article 179 as the starting point from which the period of limitation is to be reckoned, being evidently intended for the benefit of the execution-

creditors, I was at first inclined to the opinion that they might forego the privilege and elect the date of the decree itself, if by reason of Section 7 it

were in the particular case more beneficial to them to reckon the period of limitation from the date of the decree sought to be executed instead of

from a later date, i.e., the date of the last preceding application. Such view certainly would remove the anomaly of placing a decree-holder in a

worse position by reason of an application for execution having once been made on his behalf or by a joint decree-holder than if no such

application has ever been made. But such view will, I find, produce even greater anomalies in other oases. If the decree-holder or decree-holders

were to have the option of choosing any of the dates referred to in the various clauses, he or they might choose the date of the original decree,

when he or they were all under disability, in preference to the date of the final decree of the Appellate Court (confirming the original decree) when

he or one or some of them may have ceased to be under disability. The contingency that the reckoning of the period of limitation from an earlier

date may, in some cases, be more favourable to execution-creditors than from a later date, was most probably not in the contemplation of the

Legislature when Article 179 was enacted; and after a full consideration of this question, which was not fully argued, and having regard to the

relative anomalies which inevitably present themselves in either view, I have come to the conclusion that for the purpose of Section 7, the time from

which the period of limitation is to be reckoned should be the latest (applicable to the case) of the various dates referred to in the clauses of Article

The execution-creditor or creditors can claim the benefit of Section 7 only if he or they, as the case may be, were all under disability at that

date. In the present case therefore the starting point for reckoning the period of limitation should be taken to be the date of the last preceding

application, i.e., 8th January 1896, assuming, of course, that that application bad been made in accordance with law.

As already stated, only one of the three joint decree-holders was then under disability. Viewing the question from the standpoint there is a

direct conflict between the decisions of this Court and those of the High Courts of Calcutta, Bombay and Allahabad. In the latest case on the point

Surja Kumar Dutt v. Arun Chunder Roy ILR 28 Calc. 465 the Chief Justice of the Calcutta High Court and Bonnerji, J., in dissenting from the

decisions of this Court in Seshan v. Rajagopala ILR 13 Mad. 236 Vigneswara v. Bapayya ILR 16 Mad. 436 and Narayanan Nambudri v.

Damodaran Nambudri ILR 17 Mad. 189 in all of which it was held, following the construction placed by Lord Kenyon in Perry v. Jackson 4 T.R.

519 on the proviso to the Statute of James I and Section 4 of 3 and 4 William IV, cap. 42, that Section 7 of the Indian Limitation Act applies only

to cases in which either there is one decree-holder and he is a minor or in which all the joint decree-holders are minors or labour under some other

disability--distinguish the said English Statutes from Section 7 of the Indian Limitation Act, by pointing out that in the former the expression is ''If

any person or persons, etc.,'' whereas in the latter the expression is ''if a parson entitled to institute a suit or make an application be, etc.'' With all

respect to the learned Judges who took part in the above decision, I must say, the phrase ''if a person'' in the Indian Act is, by virtue of the General

Clauses Act, the same as the expression ''if any person or persons'' occurring in the English Statute.

This decision of the Calcutta High Court as well as a former decision of the same Court in Anando Kishore Dass Bakshi v. Anando Kishore

Bose ILR 14 Calc. 50 and the decisions of the Bombay and Allahabad High Courts in Govindram v. Tatia ILR 20 Bom. 383 and Zamir Hasan v.

Sundar ILR 22 All. 199 all relate to joint decree-holders, one or some of whom alone were labouring under the disability of minority at the time

from which the period of limitation had to be reckoned. It was held in all these cases that Section 8 was inapplicable to the case, but that u/s 7 the

application made by a minor decree-holder, within three years after he attained majority, for execution of the whole decree u/s 231, Civil

Procedure Code, was not barred by the law of limitation, though more than three years had elapsed since the date of the last preceding

application, inasmuch as the applicant was labouring under a disability at the date of the last preceding application. The ratio decidendi of these

decisions seems to be that by virtue of Section 231, Civil Procedure Code, each one of several joint decree-holders is competent to make an

application for the execution of the whole decree, that therefore even if one of them alone was a minor at the date of the decree or of the last

preceding application as the case may be, he is a person entitled to make an application for the execution of the whole decree and having been, at

the time from which the period of limitation is to be reckoned, a minor, he could have the benefit of Section 7, if he applies for execution of the

whole decree, within three years after he attains the age of majority, though the other decree-holders would, at that time, be barred by limitation

from applying for execution of the decree. With all deference I find it impossible to adopt this conclusion or the reasoning on which it is based.

Section 231, Civil Procedure Code, is only a rule of procedure which enables one of several joint decree-holders to make an application for the

execution of the decree on behalf of and for the benefit of all the joint decree-holders and if the Court sees sufficient cause for allowing the decree

to be executed on an application so made, it should pass the necessary orders for protecting the interests of the other persons who have not joined

in the application. In my opinion, ''a person entitled to institute a suit or make an application'' within the meaning of Section 7, is one, who, in his

own right, is thus entitled, and not a person who under a statutory provision is authorised, with the permission of the Court, to institute a suit on

behalf of himself and others having an interest in the suit (Section 30, Civil Procedure Code), or make an application for execution for the benefit of

himself and others interested jointly with him in the decree to be executed, subject to the permission of the Court to allow him thus, to execute the

decree (Section 231, Civil Procedure Code). The logical result of the reasoning on which the above decisions seem to be based would practically

be that if two or more persons are jointly entitled to institute a suit and one of them alone was under disability when the right to sue accrued, he

could institute the suit within three years after he attained majority by joining the others as co-defendants, though they would be barred by limitation

if they had then instituted the suit. In the sense in which one only of several joint decree-holders is entitled to apply for execution of a decree on

behalf of all, one only of several joint promisees or creditors is entitled to institute a suit, joining the others as co-defendants along with the debtor.

But, for purposes of limitation, neither the application nor the suit would be within time unless the application, if jointly made, or the suit, if jointly

instituted by all, would be within time.

No doubt, as observed in Anando Kishore Dass Bakshi v. Anando Kishore Bose ILR 14 Calc. 50 the bar of limitation to the execution of a

decree bars only the remedy; the right is not extinguished. But if, as therein assumed, the remedy of certain decree-holders be barred, it is difficult

to see on what principle they can recover their portion of the decree-amount from the decree-holder who executes the whole decree and whose

remedy so to execute the decree is assumed not to be barred by the law of limitation. u/s 231, Civil Procedure Code, it is obligatory on the Court,

if it sees sufficient cause to permit the execution of the whole decree on application made by one of the joint decree-holders, to pass such orders

as may seem necessary to protect the interests of the remaining joint decree-holders. If their remedy to realize their interests under the decree has

already been barred no orders could be passed for protecting, the same. Suppose the joint decree-holder, who, it is assumed, could make an

application for the execution of the whole decree, though it is assumed that the remaining decree-holders are barred from making such application,

does not choose to apply for the execution of the decree or chooses to apply only for a partial execution of the decree, or receives payment out of

Court,--have the remaining joint decree-holders any remedy as against him? Section 231, Civil Procedure Code, proceeds on the footing that the

joint decree which is sought to be executed by any one or some of the joint decree-holders and not by all is not barred by limitation either in whole

or in part and that therefore the Court may, if it sees sufficient cause, allow the whole decree to be executed for the benefit of all, on application

made by only one or some of them, due provision being made for protecting the interests of the others.

Explanation 1 to Article 179 makes it clear that where a decree has been passed jointly in favour of more persons than one and not severally,

distinguishing portions of the subject-matter payable or deliverable to each, the decree cannot be barred in part, as against some, but must be

barred in whole against all, or not at all against any. Both Sections 7 and 8 of the Limitation Act proceed on the same principle. For purposes of

giving a fresh starting point for reckoning the period of limitation under Article 179 an application for execution made by any one of several joint

decree-holders will, under explanation 1, enure to the benefit of them all.

A joint decree may, no doubt, sometimes become divisible and executable in part, to the extent of such severance, when by operation of law

or by act of parties, the judgment-debtor has acquired the interest of one or some of the joint decree-holders in the decree, and thus a partial

satisfaction or extinguishment of the decree takes place Banarasi Das v. Maharani Kuar ILR 5 All. 27 and Kudhai v. Sheo Dayal ILR 10 All. 570.

But as no such contingency is alleged to have happened in the present case, I do not consider the decisions which were cited by the learned

pleader for the respondent (In the matter of the Petition of Rally Soondery Dabia ILR 6 Calc. 594 Hurrish Chunder Chowdhry v. Kali Sundari

Debia ILR 9 Calc. 482 Tarruck Chunder Bhuttacharjee v. Divendro Nath Sanyal ILR 9 Calc. 831 Sultan Moideen v. Savalayammal ILR 15

Mad. 343 Muthusami Ayyar v. Natesa Ayyar ILR 18 Mad. 464 in support of his alternative contention that the decree can be executed ii at all

only to the extent of the youngest brother ''a interest in the decree-debt, i.e., an one-third share to which he would be entitled in a partition between

himself and his elder brothers.

Assuming that the facts bearing upon the question referred to the Full Bench are as set forth at the beginning of this judgment and that the last

preceding application for execution was made in accordance with law, my answer is that the present application for the execution of the decree,

whether that be regarded as one made by all the three brothers as joint decree-holders or, u/s 231, Civil Procedure Code, by the youngest brother

alone for the benefit of all or as one made by him for the recovery of his alleged one-third share therein, is barred by the law of limitation, but that if

the last preceding application was not made in accordance with law and the starting point for reckoning the period of limitation is therefore the date

of the decree, the present application whether it be one made by all the three brothers or u/s 231, Civil Procedure Code, by the youngest of them

alone, is not barred by limitation either in whole or in part.