Supdu Daulatsing Daji Patil vs Sakharam Ramji

Fawcett, J.—The Assistant Judge has fully and carefully considered the point whether the appellant No. 3, who was a minor at the date of the application for execution made in 1916, can avail himself of his minority so as to bring the application of September 8, 1921, within the period of limitation allowed by law. He has followed the view taken in Rati Ram v. Niadar ILR (1919) All 435 and Bapu Tatya v. Bala Ravji ILR (1920) Bom. 446: 22 Bom. L.R. 1383 as opposed to the view taken in Govindram v. Tatia I.L.R.(1895) Bom. 383. Manchand Panachand v. Kesari ILR (1910) Bom. 672: 12 Bom. L.R. 682 and similar decisions. In our opinion the language of Section 5 of the Indian Limitation Act of 1908 does make a change in what was held to be the law under the corresponding Section 8 of the Indian Limitation Act of 1877. The observation of Scott C.J. in Manchand v. Kesari to the contrary is a decision of a single Judge not binding upon us, whereas the view taken in Bapu Tatya v. Bala Ravji ILR (1920) Bom. 446: 22 Bom. L.R. 1383 was that of a Division Bench and is, in our opinion, correct. Section 8 of the Act of 1877 used the words "joint creditors or claimants," and it was held in Seakan v. Rajagopala ILR (1889) Mad. 236 that these words did not include execution creditors. This was because a joint decree-holder under certain provisions of the CPC could not give a valid discharge of the decretal debt without a supplementary authority or act of the Court executing the decree, whereas "Section 8 applies only to those cases in which this act of the adult joint owner is per se a valid discharge". In other words, it was held that the case of one of joint decree-holders applying to execute a decree could never fall u/s 8. But the Legislature has clearly shown its dissent from this view by expressly including in Section 5 of the Act of 1908 the case of "one of several persons jointly entitled to make an application for the execution of a decree," and putting this on the same footing as one of several persons jointly entitled to institute a suit. We may refer also to the remarks in Duraisawmi Sastrial Vs. Venkatarama Iyer and Another, as to the change made by the Legislature in 1908. As the law now stands, the manager of a joint Hindu family can give a valid discharge without the concurrence of the minor members of the family in the case of an application to execute a decree, just as he can in the case of a suit of. Huchrao Timmaji v. Bhimrao Gwrunw ILR (1917) Bom. 277 and the mere fact that one of the members is a minor will not prevent time running against all the members of the family. We, therefore, dismiss the appeal with coats.

Mirza, J.

I concur.