Satyendra Narain Sinha and Others vs Pitamber Singh and Others

Varma, J.—This is a petition on behalf of the decree-holders who obtained a decree on 6th August 1926, against the opposite party through their guardian. The guardian applied for execution in the year 1931 but it was rejected for default on his part; and the execution Court also held that the petition for execution was barred by limitation. One of the decree-holders attained majority in the year 1935 and he along with the other decree-holders who are still minors again applied for execution. The learned Subordinate Judge has held that the present application for execution was not maintainable inasmuch as it was already rejected as time-barred and that order operated as res judieata.

In revision, Mr. Baldeo Bahay appearing on behalf of the decree-holders petitioners, urges that they were not bound by the acts of their guardian, and since one of the petitioners attained majority in the year 1935, he along with the other decree-holders was entitled to apply for execution within the statutory period of three years from the date of attaining majority. Mr. B.K. Chowdhry appearing on behalf of the opposite party, contends that the order passed on the previous application for execution in the year 1931 was made u/s 47, Civil P.C. and had therefore the force of a decree, and that that order not having been appealed against or set aside, operated as res judicata, and further that the minors were bound by the acts of their guardian. The learned advocate on behalf of the petitioners has relied upon various decisions in support of his contention. I shall first) take up the Calcutta oases.

In Phoolbas Koonwur v. Lalla Jogeshur Sahoy (1876) 1 Cal. 226 while dealing with the point of limitation raised in the case, their Lordships of the Judicial Committee observed as follows:

The facts proved are that in each of these oases the plaintiff, through his guardian preferred a. claim to the property when attached u/s 946 of Act 8 of 1859; that that claim was rejected and that the present suit was not brought within, one year from the date of the order of rejection. This objection would have been fatal to the suit, had the party preferring the claim been an adult; and the only question to be determined'' was whether the plaintiff, being under'' the disability of in fancy, could claim the benefit of Section 11 of Act 14 of 1859, which empowers him or his representative to bring a regular suit within the same time-after the cessor of the disability as would otherwise have been allowed from the time when the. cause of action accrued.

Later on, their Lordships said:

Looking at Sub-section 5 of Section 1 and Sections 3 and 11 of Act 11 of 1859, their Lordships have no doubt that the intention of the Legislature was that the period of limitation resulting from Section 246 of Act 8 should, in the case of a minor, be modified by the operation of Section 11 of Act 14; and that this construction has obtained in the Courts of India appears from the case in, Huro Soonduree v. Anuudnath Roy (1865) 3 W.R. 8.

In Norendra Nath Pahari v. Bhupendra Naraain Roy (1896) 23 Cal. 374 an objection was taken that tbe application for execution on behalf of the minor having been made more than three years after the previous application, that application and all subsequent applications were barred by limitation. Their Lordships of the Calcutta High Court following the decision of the Privy Council in Horo Soonduree v. Anuudnath Roy (1865) 3 W.R. 8 held that limitation was saved by the operation of Section 7, Limitation Act, the person entitled to make the application being at the time from which limitation is to be reokoned, a minor (Section 7 of the old Act now corresponds to Section 6 of the present Act).

A similar view has been expressed in Shama Churn v. Kanangai Prosad 7 C.W.N. 594 In Jagadinddra Nath Roy v. Hemanta Kumari Debi (1905) 32 Cal. 129 their Lordships of the Judicial Committee observed that where a right of action accrues to a minor, the fact that his guardian might have maintained the suit does not deprive the minor of the protection given to him by the Limitation Act. The decision of the Allahabad High Court in Mt. Siraj Fatima and Others Vs. Mahmood Ali and Others is not on all fours with the case in hand. There their Lordships were dealing with a case in which the minor sought to avoid a decree on the ground that his guardian was negligent.

In the Madras High Court in Anantharama Ayyan v. Karupppanan (1882) 4 Mad. 199 it was definitely held that the fact that the minor for a time is represented by the guardian does not remove the disability of the minor. The judgment of their Lordships in that case is a short one and may be quoted with advantage. It says:

In this case the person to whom the right accrued was, at the time of it a accrual, a minor, and. although for a season he was represented by a guardian, who made the first application on his behalf, this circumstance did hot remove the disability of the minor. The application was saved from limitation by the provisions of Section 7, Lim. Act, if the applicant did not attain his majority more than three years before the application was made, which his apparently not denied.

In this case also, the reference is to the old Limitation Act of 1877). The view taken by the Bombay High Court in Kashinath Rajaram v. Govind Shankar A.I.R.1930. Bom. 593 was that u/s 6 (of the Limitation Act) the last date for the decree-holder to apply was within three years after attaining majority. This case relied upon a series of oases such as Mon Mohan Buksser v. Gunga Soondery Debee (1883) 9 Cal. Lolit Mohun Misser v. Janoky Nath Roy (1893) 20 Cal. 714. Norendra Nath Pahari v. Bhupendra Narain Roy (1896) 23 Cal. 374 and Zamir Hassn v. Sunder (1900) 22 All 199 .The learned advocate for the opposite party relying on the decision of this Court in Hari Mahton v. Saheb Lal Singh A.I.R.1935. Pat. 526 contends that the present application for execution was not maintainable, because the previous application was dismissed for default and that order operated as res judicata in the present case. That was not however a decision dealing with the rights of a minor to institute a suit or make an application for the execution of a decree. That decision has no application to the facts of the present case.

In my opinion, as was held in Shama Churn v. Kanangai Chaitan Prosad 7 C.W.N. 594 and Jagadindra Nath Roy v. Hemanta Kumari Debi (1905) 32 Cal. 129. Section 6, Lim. Act, applies to every minor whether he has a guardian or not, and the existence of a minor competent to sue is immaterial. u/s 6(1) of the Act, a minor is "entitled to institute a suit or make an application for the execution of a decree" within the statutory period of three years after attaining majority, and it is clear that the Legislature never intended to restrict the protection given to a minor by the acts of his guardian in the matter of making an application for execution.

In these circumstances, I am of opinion that the Court below was wrong in holding that the present application for execution was not maintainable.

I would therefore allow this application with costs and direct that the execution should be proceeded with; hearing fee one gold mohur.