SATYENDRA NARAIN SINHA Vs. PITAMBER SINGH

JUDGEMENT

(1.) This is a petition on behalf of the decree-holders who obtained a decree on 6th August 1926, against the opposite party through their guardian. The guardian applied for execution in the year 1931 but it was rejected for default on his part; and the execution Court also held that the petition for execution was barred by limitation. One of the decree-holders attained majority in the year 1935 and he along with the other decree-holders who are still minors again applied for execution. The learned Subordinate Judge has held that the present application for execution was not maintainable inasmuch as it was already rejected as time- barred and that order operated as res judieata.

(2.) In revision, Mr. Baldeo Bahay appearing on behalf of the decree-holders petitioners, urges that they were not bound by the acts of their guardian, and since one of the petitioners attained majority in the year 1935, he along with the other decree-holders was entitled to apply for execution within the statutory period of three years from the date of attaining majority. Mr. B.K. Chowdhry appearing on behalf of the opposite party, contends that the order passed on the previous application for execution in the year 1931 was made under Section 47, Civil P.C. and had therefore the force of a decree, and that that order not having been appealed against or set aside, operated as res judicata, and further that the minors were bound by the acts of their guardian. The learned advocate on behalf of the petitioners has relied upon various decisions in support of his contention. I shall first) take up the Calcutta oases.

(3.) In Phoolbas Koonwur V/s. Lalla Jogeshur Sahoy (1876) 1 Cal. 226 while dealing with the point of limitation raised in the case, their Lordships of the Judicial Committee observed as follows: The facts proved are that in each of these oases the plaintiff, through his guardian preferred a. claim to the property when attached under Section 946 of Act 8 of 1859; that that claim was rejected and that the present suit was not brought within, one year from the date of the order of rejection. This objection would have been fatal to the suit, had the party preferring the claim been an adult; and the only question to be determined was whether the plaintiff, being under the disability of in fancy, could claim the benefit of Section 11 of Act 14 of 1859, which empowers him or his representative to bring a regular suit within the same time-after the cessor of the disability as would otherwise have been allowed from the time when the. cause of action accrued.