PARMESHWARI SINGH Vs. RANJIT SINGH

JUDGEMENT

(1.) This appeal is by the judgment-debtor against the order of the District Judge allowing the appeal against the decision of the Subordinate Judge in an execution case. The only point was whether the application for execution is barred by limitation. The first execution was taken out on 26 September 1935, and the decree having been obtained on 28 January 1932, in favour of four persons, the grandfather who was the karta of the family, his sons and a grandson who was a minor, it is clear that the application would be barred by limitation unless some provision of the Limitation Act could be called to the aid of the decree-holders. The decree-holders rely upon Section 7 of that Act.

(2.) Section 7 provides that where one of several persons who are jointly entitled to make an application or to institute a suit is under a disability, the question whether that disability enures to the benefit of the other decree-holders or applicants depends upon applying the test whether the persons who are not under a disability could give a discharge without the concurrence of the person under such disability. I do not think there can be any doubt in this case that the grandson (the minor) appeared by his nearest friend, whoever that may have been, probably his grandfather. There are certain references in the record which lead us to suppose that to be the case.

(3.) At one stage of the argument, it was thought necessary to send for the record of the case for the purpose of determining whether a guardian had been appointed by Court but at that moment there was some misapprehension and it is now clearly seen that no such application is necessary having regard to the fact that the minor was amongst the applicants and not a defendant or respondent to the application. We must therefore act on the assumption that the minor, as I have said, appeared by his next friend whether he appeared by the next friend (the minor being the applicant) or whether he appeared by his guardian ad litem (being defendant to the suit or respondent to the application in execution), Order 32, Rule 6, equally applied which is mandatory and is mandatory in the sense that no compromise can be entered into without the leave of the Court. Therefore we have to apply the test of Section 7 on the assumption, in this case that the grandfather could not give a discharge on behalf of the minor.