Sethurajan by Guardian Nataraj Sethurayan vs Guruswami Pathar

Mockett, J.—This is a second appeal against the order of the District Judge of East Tanjore allowing the appeal against the order of the

District Munsif of Shiyali. The decree-holder respondent obtained a decree against the father of the appellant and the appellant. He impleaded the

appellant as a major. In execution the third defendant obstructed and a petition was put in by the decree-holder to have his obstruction removed

and possession of the property delivered. The appellant then appeared by his mother as guardian and pleaded that he was a minor. The lower

Court having so found, dismissed the petition. The lower appellate Court allowed the appeal on the grounds that this matter could not be raised by

the appellant in execution and that his proper remedy was by way of suit. The point for decision is which of these two views is correct.

The appellant has argued that under Order 21, Rule 99, the petition was correctly dismissed because he being a minor, was in the same position

as a person "" other than the judgment-debtor "", and according to the ruling of the Privy Council in Rashid-un-nisa v. Muhammad Ismail Khan

(1909) 19 M.L.J. 631: L.K. 36 L.A. 168: ILR 31 All. 572 (P.C.) the appellant not having been properly represented, was not a party at all. That

argument, however, seems to beg the question in this case, which is, at what stage should the question of minority be gone into. And it is to be

observed that in the abovementioned case, the question was raised in connection with Section 244 of the Code of 1882 (corresponding to Section

47 of the present Code) and it was held that a suit to set aside execution proceedings by a minor on the ground of non-representation was not

barred by the above section. There are conflicting authorities on the subject. In Sami Chettiar and Another Vs. T.R. Sesha Iyer and Co. and

Another, Devadoss, J., took the view that the question of a defendant being a minor could be taken at any time, even in execution. And in Venkata

Someswara Rao v. Lakshmanaswami (1928) 56 M.L.J. 175: ILR 52 Mad. 275 Kumaraswami Sastri, J., one of the referring Judges, staced that,

at least, on the balance of convenience, it was better that the question whether a decree was void by reason of the defendant being a minor should

be gone into in execution and not by means of a suit. Devadoss, J., at page 284 says:

The second question is, can the executing Court entertain an objection to the execution of the decree against a minor on the ground that the

guardian ad litem had an interest adverse to that of the minor in the suit? If the decree is not illegal on the face of it, is it open to the executing Court

to go behind it?.

He then goes on to say that it is open to the minors to have these matters investigated in a suit. Kumaraswami Sastri, J., seems to draw a

distinction between a void and a voidable decree. In the former, he considers that the matter can be investigated in execution and so does

Devadoss, J. The Full Bench set at rest none of these questions. It is necessary to say a few words with regard to Kumaraswami Sastri, J.''s

suggestion that the balance of convenience is in favour of investigating the question of minority, in execution. That may be so, and that comment

might frequently be made with regard to the preferability of investigations in execution to those in a suit. But, with great respect, it does not seem to

me to satisfy the test laid down by Section 47. The point that is raised in such cases seems to be not one "" relating to the execution, discharge or

satisfaction of the decree,"" but amounts to a plea that the decree is void and that it was wrongly passed by the trial Court. An examination of the

cases mentioned shows that they are not direct decisions on this point, the observations in favour of the appellant in these cases being obiter. But

the matter has been directly dealt with in two recent decisions of this High Court. In Govindan Nadar Vs. Natesa Pillai (Lunatic) represented by his

wife and guardian Annathachi, Jackson, J., had to deal with this very question. In that case, it was raised in execution that the defendant was a

lunatic, unrepresented. Jackson, J., following the decisions of the Calcutta High Court in Kalipada Sarkar v. Hari Mohan Dalaf ILR (1916) Cal.

627 and Gora Chand Haldar v. Prafulla Kumar Roy ILR (1925) Cal. 166 took the view that it was not open to the executing Court to go into the

matter. The rule to be derived from Gora Chand Haldar v. Prafulla Kumar Roy (1934) 68 M.LJ. 318: ILR 58 M. 752 seems to be that the

voidness of the decree must be apparent on the face of it. Jackson, J., observes that the rule laid down by the Calcutta High Court conforms with

the universally recognised principle, and he accepted those decisions. In Lakshmanan Chettiar v. Chidambaram Chettiar ILR (1913) Mad. 682 a

Bench of this High Court (Curgenven and Cornish, JJ,) has expressed approval of the above decision of Jackson, J., and prefers his view to that of

Oldfield, J., in Subramania Aiyar v. Vaithinatha Aiyar (1925) 50 M.L.J. 232 and Madhavan Nair, J., in Arunachalam Chetty v. Abdul Subhan

Sahib ILR (1931) Rang. 480. It may be mentioned that the High Court of Rangoon in S.A. Nathan v. S.R. Samson has dissented from the Full

Bench decision of the Calcutta High Court in Gora Chand Haldar v. Prafulla Kumar Roy ILR (1925) Cal. 166. I prefer the Calcutta view

expressed in Kalipada Sarkar v. Hari Mohan Dalal ILR (1916) Cal. 627 and Gora Chand Haldar v. Prafulla Kumar Roy ILR (1925) Cal. 166. I

do not consider that Section 47, Civil Procedure Code, is intended to be used for the purpose of investigating matters relating to the validity of the

decree itself when on the face of it there is nothing illegal about the decree. Cases in which pleas of minority might be deliberately withheld for the

purpose of obstructing future execution proceedings can be easily imagined and I am not impressed by the argument as to hardship. As to the

question of hardship, in suitable cases, the Court in which the suit is filed to set aside the decree can always, by interlocutory orders, make

provision against the minor''s property being unjustly sold.

As to the point raised that the order of the District Munsif was not appealable it is quite clear that he purported to make it u/s 47 and there is no

substance in this contention as a result of these conclusions I would dismiss this appeal with costs.

Horwill, J.

I agree.

There is no definite current of decisions in any High to the effect that an executing Court, whose business it is to execute, should institute an

enquiry at the instance of any person to ascertain whether a decree, to all appearances a perfectly valid one, may not for some reason or other be

invalid. It is against the well-established principles governing the duties of an executing Court that it should sit in judgment over a Court that has

passed a decree, which may even be a superior Court. Cases do however arise where the executing Court is forced to notice that a decree is not

executable and in such cases it should not execute. The unexecutability of the decree may be obvious from a perusal of the judgment and the

pleadings, or it may appear, when a decree-holder is seeking to make a legal representative of a judgment-debtor liable that the legal

representative is not liable, because no decree was passed against the judgment-debtor while he was yet alive. Executing Courts must recognise

these facts. I do however feel that it would be against the trend of decisions, above all the decisions since the closely reasoned-judgments in

Kalipada Sarkar v. Hari Mohan Dalai ILR (1916) Cal. 627 to countenance an enquiry in execution whether a judgment-debtor was a minor.

Although the principal case relied on by the appellant S.A. Nathan v. S.R. Samson ILR (1931) Rang. 480 disagrees with Gora Chand Haldar v.

Prafulla Kumar Roy ILR (1925) Cal. 166 regarding the distinction between a decree that is void on the face of it and one that is found to be void

after enquiry, yet the effect of the judgment in S.A. Nathan v. S.R. Samson ILR (1931) Rang. 480 is to make an exception only with regard to a

judgment-debtor who died before decree, a special case since distinguished even by the Calcutta High Court. In most of the decisions placed

before us on behalf of the appellants the effect of the Privy Council case, Rashid-un-nisa v. Muhammad Isma''l Khan (1909) 19 M.L.J. 631: L.R.

36 IndAp 168 : ILR All. 572 has not been considered; but in the Rangoon case it is recognised that this decision of the committee does stand in

the way of an enquiry regarding the minority of a judgment-debtor. When a judgment-debtor appears in execution and asserts that he is a minor he

is in fact saying that he was not a party to the decree, which admission precludes the executing Court from making an enquiry u/s 47, Civil

Procedure Code.

It is argued that if the District Munsif had no authority u/s 47 to go into this matter his order was not one u/s 47 and so is not appealable. The

fallacy of this argument is that although the District Munsif ought not to have made this enquiry he assumed jurisdiction and purported to pass an

order u/s 47, Civil Procedure Code. His order, wrongly given though it was, was therefore u/s 47, Civil Procedure Code, and appealable.

The respondent has put forward an alternative answer to the appellant. It is that as two brothers of the appellant, with identical rights and

liabilities, were parties to the decree, they sufficiently represented the minor appellant. This is a reasonable contention but it is weakened if not

vitiated by the fact that the plaintiff did not treat them as representatives of the appellant''s interest because he impleaded him, as well as his

brothers. In view of the fact that the appeal fails otherwise we have not thought it necessary to decide this rather nice point.