DELHI VENKATARAMA DOSS PANTULU Vs. DELHI BHEEMARAO

JUDGEMENT

(1.) THIS appeal arises out of an application for execution of a decree in favour of the respondent, an insane person and his elder brother, who acted as his next friend, as well and the sole question for determination is whether the application is barred by limitation. The prior application by the wife of the respondent for removal of the next friend and permission to execute the decree on behalf of her husband cannot be deemed to be an application for execution in accordance with law within the meaning of Art. 182 of the Limitation Act, nor was it pressed finally. The original next friend continued to represent the respondent and a batta memo filed in such an application can hardly furnish a fresh starting point of limitation. The question thus depends upon whether the respondent is entitled to the benefit of Section 7 of the Limitation Act, and whether or not by reason of the decree being on a joint promissory note in favour of the brothers and the next friend being the elder brother, he could give a valid discharge without the concurrence of the respondent; the decree it self empowers the elder brother to recover the entire amount on furnishing security for the half share of the respondent. He could thus give a valid discharge without the concurrence of the respondent, as held in Murlidhar Laxman v, Shivaram Sadashiv Patil 121 Ind. 446 : A.I.R. 1929 Bom. 382 : 31 Bom. L.R. 963 : Ind. Rul. (1930) Bom. 62. and the person under disability is not in such cases entitled to the benefit of Section 7 of the Limitation Act. It follows, therefore, that the application is barred by limitation and the decision of the lower Courts cannot be upheld. It is therefore, set aside and the execution petition will stand dismissed with costs throughout.