KANAI LAL SAHA Vs. BAIJANATH KHETRI

JUDGEMENT

(1.) This is an appeal preferred by the judgment-debtors who had put in an objection under Section 47, Civil P.C., the said objection having been overruled by the Court below. The facts necessary to be stated are the following: The decree that was sought to be executed was a final decree for sale on a mortgage. It had been obtained on the death of the mortgagee, Bishandas Khetri, by his heirs No. 1 Baijanath Khetri, No. 2 Ramnath Khetri, minor, No. 3 Babulal Khetri, minor, and No. 4 Narayandas Khetri, minor, the said minors being represented by their guardian and elder brother Baijanath Khetri. That was the form of the title contained in the decree. The decree was passed on 4 February 1931. The application for execution which has given rise to this appeal was filed on 2 February, 1934. It was filed by the said Baijanath Khetri for himself and also as guardian and elder brother of Ramnath Khetri, minor, Babulal Khetri, minor, and Narayandas Khetri, minor. The objection that was taken on behalf of the appellants was that the decree was barred by limitation. The ground upon which this objection was pressed before the Subordinate Judge was that the decree-holder Baijanath, being a major, was competent to give a valid discharge and that therefore the decree-holders were not entitled to rely upon Section 7, Lim. Act, to save limitation. The learned Subordinate Judge having overruled this plea, the appellants have preferred the present appeal.

(2.) In support of the aforesaid contention which was urged on behalf of the appellants in the Court below and has been repeated before this Court, two decisions have been cited and it is necessary to refer to them at the outset in order to clear the ground for a consideration of the question that has been raised. One of them is the decision in Khaje Salauddin V/s. Mt. Afzal Begum . This decision has been relied upon in support of the contention that a guardian-ad- litem appointed in a suit does not continue as such without a fresh appointment in the execution proceedings, and when a litigation has been terminated by the final decree, there is no longer any lis pendens. This case has been relied upon for the purpose of the contention that although in the course of the suit Baijanath Khetry had assumed the role of guardian in respect of the minors, yet by the passing of the final decree in the suit the lis had terminated and so he no longer remained a Court guardian and his disability as such was removed and that when thereafter he came in and put in the application for execution, he was not entitled nor was any of the other decree-holders entitled to rely upon Section 7, Lim. Act. It will be observed however that the aforesaid decision expressly limited itself to cases of decrees for recovery of money, because the learned Judges laid down the aforesaid proposition, on which reliance has been placed on behalf of the appellants, in well guarded language observing thus: We are now speaking of simple decrees as the decree in this suit for the payment of money and not in relation to mortgage-decrees or decrees for delivery of accounts.

(3.) The authority of this decision, in whatever way it might be sought to be used in favour of the appellant, cannot be invoked for the present contention which has arisen in respect of execution proceedings relating to a final decree for sale in a suit on mortgage. The other case to which reference has been made on behalf of the appellant is the decision in Bholananda Jha Vs. Padmanund Singh (1902) 6 C W N 348. In that case a rent-decree had been obtained by an adult plaintiff and three minors who were described in the plaint as suing through the adult plaintiff as their guardian ad litem. It should be observed that the facts of the case do not appear very clearly from the judgment of this Court which has been relied upon, but there is towards the end of the judgment a passage which runs in these words: It is unnecessary in this particular case to consider whether a discharge by a person who was acting as next friend, supposing all the plaintiffs had been minors, would have been a valid discharge or not. In the present case we have the fact that one of the plaintiffs was undoubtedly an adult competent to give a valid discharge, The matter therefore comes directly under Section 8, Limitation Act, and there does not seem to be any reason for holding that the plaintiffs are protected by provisions of Section 7.