ANAND SINGH Vs. CHANDMAL

JUDGEMENT

(1.) THIS is a second appeal in execution proceedings by the judgment debtor against the order of the learned District Judge, Pali 3rd February, 1956.

(2.) THE facts giving rise to it are that a suit for the recovery of Rs. 400/- as damages was brought on behalf of Chandmal respondent through his next friend but it was decreed for Rs. 2000/- only by the court of the Judicial Superintendent, Jodhpur. That judgment and decree was upheld by the then Chief Court of Marwar on 4th April, 1947. THE respondent continued to be a minor by that time and therefore in his interest the learned Judges of the Chief Court passed a further order appointing District Judge No. 3 Jodhpur as the guardian of the minor. THE District Judge N. 3 was directed to deposit the sum of Rs. 2000/- in some safe bank, on interest and to allow the respondent's father Ramdayal to draw a sum of Rs. 10/- p. m. for defraying the school expenses of the boy. It was left to the District Judge to increase this amount if the school expenses were to rise. Ramdayal was directed not to withdraw amount larger than the one permitted by the District Judge and to keep an account and submit the same to the District Judge. Lastly it was directed that if any balance is left over on Chandmal's attaining the age of majority, which was clarified as 21 years in this case,- the District Judge No. 3 was to handover that amount to him. It appears that neither the learned District Judge No. 3 nor Ramdayal father of Chandmal, took any steps to recover the amount from the judgment debtor through the court. On 4th March, 1952, Chandmal himself presented an exe-cution application along with a separate application under sec. 6 of the Indian Limitation Act. In the second application, it was mentioned by him that he was born on Asoj Sudi Poonam, Svt. 1989 that he had attained the age of majority when he became 18 years of age on Asoj Sudi Poonam, Svt. 2007 and therefore the period prior to Asoj Sudi Poonam, Svt. 2007, should be excluded. THE judgment debtor contested the execution application on two grounds. It was firstly urged that certain necessary parties were not 'repleaded. This objection was, however, abandoned at the time of arguments in the executing court. His next contention was that the execution application was liable to be dismissed. Curiously enough, the second contention was founded on two contradictory grounds. In the first place, it was urged that Chandmal had not attained the age of 21 years, that he was a minor and therefore the execution application was not maintainable. On the other hand, it was also contended that the decree-holder was in fact, not born in the year 1932 as asserted by him but that he was born in the year 1929 and therefore his application for execution was time barred. It appears that when the case came for arguments before the executing court only one objection namely, regarding limitation was pressed. It was held by the executing court that even if the decree holder was born in 1929 as alleged by the judgment debtor he attained the age of majority in 1950 on reaching the age of 21 years and therefore the execution application was not barred by limitation. With this observation the executing court dismissed the judgment debtors objection. Aggrieved by this order dated 7. 8. 54 the judgment debtor went in appeal but he was unsuccessful and hence he has approached this Court.