SM JUGAL KISHORE DEBI Vs. BAIDYA NATH ROY

JUDGEMENT

(1.) This is an appeal from an order of the learned Subordinate Judge of Asansole of the 7th August 1925, dismissing an objection by a judgment-debtor to the execution of a decree passed by the High Court of Patna on the 6 December 1920. The present execution proceedings were commenced on the 23 March 1925, and, therefore, prima facie were time- barred. The decree-holders contended that the present application for execution was not barred by limitation, because (1) on two previous occasions, 15 April 1921, and the 11th January 1924, applications had been made "in accordance with law" to execute the said decree in the proper Court," namely, the Court of the Subordinate Judge of Dhanbad and, therefore, under Art. 182(5), Statute of Limitation (Act 9 of 1908), the present application was presented within the time limited by the Statute; (2) on the 6 December 1920, when the decree which it is now sought to execute was passed, two of the three decree-holders were, and still are, minors, and the three decree-holders being jointly entitled to make an application for execution of the decree, and the adult decree-holders not being able to give a discharge to the judgment-debtors without the concurrence of the minor decree-holders the present application was saved from the bar of limitation by the provisions of Secs.6 and 7, Limitation Act. The first contention raised by the decree-holders cannot be supported, for it has not been proved that either of the two previous applications was made (a) in accordance with law; (b) to the proper Court. Under Section 37, Civil P.C. "the Court which passed the <JGN>Page</JGN> 2 of 4 decree" of the 6 December 1920, is deemed to be the Court of the Subordinate Judge of Purulia and that Court did not send the decree to the Court of Subordinate Judge of Dhanbad for execution as required by Secs.38 and 39 and Order 21, Rule 6, Civil P.C. As the decree-holders have failed also to prove that the Court of the Subordinate Judge of Purulia had ceased to exist or to have jurisdiction to execute the decree the two previous applications to the Dhanbad Court for execution were not made in accordance with law" or to the proper Court," and are not to be regarded as steps- in-aid of execution within Art. 182(5), Limitation Act. It was established, however, that the decree was duly sent to the Court of the Subordinate Judge at Asansole for execution by the Court at Purulia, and that the present application for execution presented in compliance with the provisions of the Civil Procedure Code.

(2.) With respect to the second contention that has been raised before us by the decree- holders it is necessary to refer to certain material facts that are not in dispute in order that the nature of the proceedings may be appreciated. It is to be observed that the judgment-debtors objection to the execution of this decree is utterly devoid of merit, and is based solely upon technical grounds. It appears that the defendants in the suit were officials employed in the management of the estate of one Prosanna Kumar Roy, a trader of Keshalpur, and that, after the death of Prosanna the present suit No. 198 of 1911 was brought in the Court of the Subordidate Judge of Purulia inter alia to compel the defendants to render an account of the moneys that they had received in the course of stewardship. The plaintiffs were two of the sons of Prosanna; (1) Bireswar Roy an adult, (2) Butto Kristo Roy, then a minor, by his next friend and brother Bireswar. The third son of Prosanna, Bhola Nath Roy also a minor was made defendant 7 and appears through his mother Sarojini Debya as next friend and guardian ad litem. The suit was decreed on 16 September 1916, in favour of the plaintiffs and defendant 7 against the judgment-debtor or his predecessors-in-title. The decree-holders, regarding the sum decreed as inadequate, appealed to the High Court at Patna. Meanwhile Butto Kristo had attained his majority and Bireswar had died, and on the 6 December 1920, when the decree of the High Court was" passed, the appellants were (i) Baidyanath Roy, a minor son of Bireswar Roy by his mother Satyabala Debya as his next friend and guardian ad litem, (2) Butto Kristo Roy and (3) Bhola Nath Soy, the other minor son, by his mother Sarojini Debya as his next friend and guardian ad litem. The decree provided inter alia: Accordingly it is ordered and decreed that the appellants do realise from Respondent 1, Rs. 18,328-10-9 and costs Rs. 1,448-8-9. Respondents 2 to 5, Rs. 592-12-6 and costs Rs. 46-13-4. <JGN>Page</JGN> 3 of 4 Respondent 6, Rs. 278-3-0 and costs Rs. 22. Respondent 7, Rs. 1,777-14-6 and costs Rs. 140-8-0. Respondent 8, Rs. 27,678-12-9 and costs Rs. ,187-0-9 Respondents 2, 3 4, 5 and 8 Rs. 1,977 and costs Rs, 166-3-6 and the respondents to boar their own costs in the lower Courts And it is further ordered and decreed that the respondents do pay to the appellants the sum of rupees four hundred and sixty-five annas eleven and pies ten only as per details at foot being the amount of proportionate costs incurred by the latter in this Court.

(3.) It is not, I think, open to doubt or controversy that this decree quoad the principal defendant was a joint decree which the decree-holders were jointly entitled to execute. In Ahinsa Bibi V/s. Abdul Kader Saheb [1902] 25 Mad. 26 which was a suit brought by the heirs of a deceased partner for an account, and to recover from the other partners their father's share of the profits in the partnership, Bhashyam Ayyangar, J., observed: The claim which was possessed by one individual is now possessed jointly by a number of individuals, who are his legal representatives and all must, therefore, join in a suit to enforce that claim. If one or more of such joint claimants do not join as plaintiffs, the course to be pursued in India, according to long established course of decisions, is for the claimants bringing the suit to join, as party defendants, those who do not join as plaintiffs. The cause of action fort king an account...was one and indivisible, as against the surviving partnars, and it necessarily follows that the suit cannot bo barred in respect of some of his heirs and not barred in respect of the others. It must be either wholly barred or not barred at all. This is the principle underlying Secs.7 and 8, Indiap Limitation Act. (now Section 6 and 7 of the present Act).