BILWAR BIBI Vs. MAHAMED HABIBAR RAHMAN

JUDGEMENT

(1.) This appeal is preferred by the judgment-debtors. The respondents obtained a decree against the appellants in a contribution suit on February 25, 1913, and that decree was confirmed on January 17, 1914. They presented an application for execution on January 8, 1917, but withdrew it on March 24, 1917. On March 12, 1920, they made another application, the application from which the present appeal arises. Prima facie, the application is barred by limitation but the Courts below have held that limitation was saved by the fact that some of the decree-holders were minors and that the adult decree-holders could not give a discharge without their concurrence. It is urged for the judgment-debtors that this finding is erroneous.

(2.) It appears that the original plaintiff in the contribution suit died during the hearing of the suit, and that the present decree-holders were brought on the record as his representatives. On February 21, 1913, a certificate was issued under Act VII of 1889, and it was by virtue of that certificate that the decree holders obtained their decree four days later [see Section 4(1) (iii)]. We have called for the record of the application under Act VII of 1889. It purported to be made by five persons, the adult son Habibar Rahman and the widow of the deceased and the three minor sons represented by their adult brother as their guardian. The certificate was granted to all five, with the remark that three of them were minors represented by their guardian Habibar Rahman; it also appeal's that a bond was taken from Habibar Rahman to secure the interests of the minors. Some time later in October 1917, Habibar Rahman was appointed guardian of two of his minor brothers under Act VIII of 1890, but I do not think that that fact affects the situation. The question is whether Habibar Rahman and the other adult holders could by that certificate give a valid discharge to the judgment-debtors. It is clear that the object of the certificate was that they should be able to do so; the debt had to be specified in the application under Section 6, and again it was specified in the certificate that was issued; and under Section 16 of the Act the certificate is conclusive against persons owing the debt specified in it, and notwithstanding any contravention of Section 1(4) or other defect, affords full indemnity to all such persons as regards all payments made in respect of such debts to the persons to whom the certificate was granted.

(3.) It appears to me that the certificate as described by the learned Judge was in effect granted to the two adults, with the addition that Habibar Rahman had three minor brothers, entitled to share with him in any assets recovered under the certificate. This addition was a superfluity, for the rights of other persons to share in the moneys recovered are safeguarded by Section 9, and the Court that grants the certificate has to satisfy itself only on the points that notice has been given to such other persons and that the applicant is a suitable person to receive the certificate. In this view I think that the two adults were competent to give a valid discharge to the. judgment-debtors without the concurrence of the minors. Any other estimate of the meaning of the certificate would involve a finding that its only use was to show the Court before which the suit was pending that certain fees had been paid. That I think would be a grotesque construction of a certificate granted under an Act to facilitate the collection of debts on successions and to afford protection to parties paying debts to the representatives of the deceased persons.