LALTA PRASAD Vs. SURAJ KUMAR

JUDGEMENT

(1.) Lalta Prasad was one of two decree-holders in whose favour a decree was passed for the recovery of money from certain judgment-debtors, two of whom were, at the time when the decree was passed, minors, viz. Kundan Lal and Balbhadar Prasad. The decree was passed jointly against them under the guardianship of their mother, a married woman whose husband was alive, and against others who were majors at the time. The decree bears date the 17th November 1900. It was carried into appeal up to this Court and the decree was affirmed on the 19 April 1903. Thereafter execution was taken out against the minors on the 24 August 1904. When these execution proceedings were being taken out the minors were still represented by the lady who had represented them throughout the suit. It then occurred to the minors or some one on their behalf that the decree, so far as they were concerned, was a decree that could be challenged, inasmuch as, when it was obtained the person who purported to represent them was not legally qualified to do so. They accordingly brought a suit to have the decree set aside and the execution proceedings were for the time stayed by order of the court. The suit was dismissed by the court in which it was first brought and the decree-holders at once resumed their application for execution again naming the lady already mentioned as guardian. In the meanwhile an appeal was brought on behalf of the minors and on the 1 July 1907, it was held by this Court, that the decree obtained on the 17 November 1900 was inoperative as against the minors. Thereupon the decree-holders lost no time in taking out execution proceedings against the other defendants. The defendants raised two objections firstly, that there was an understanding between the decree- holders and themselves that the decretal money should be in the first instance realized from the property of the minors, and secondly, that the application in the years 1904 and 1905 was of no effect and in consequence the present application was time-bound. The court very properly refused to go into the former of these objections. As regards the latter it held that the application was time-barred. It accordingly rejected the application for execution and the decree-holder, Lalta Prasad, under the guardianship of Gajadhar, comes here in appeal.

(2.) He contends that the execution taken out by him in 1904 and 1905, though taken out against the minors only, are, under the provisions of Art. 179, Schedule II, Act XV of 1877, applications which take effect equally against the present respondents, and if they be held good, then the present application is not time-barred. On behalf of the respondents it was contended that the decree being, so far as the minors were concerned, null and void the applications of 1904 and 1905 were applications to execute a null and void decree and cannot have the effect of keeping the decree alive against the other judgment-debtors.

(3.) No case directly bearing upon this question has been placed before us and the matter is not free from difficulty. But after careful consideration of the words used in explanation I of Art. 179, Schedule II of the Limitation Act we are prepared to hold that the applications at the time when they were made, namely in 1904 and 1905, were applications in accordance with law to the proper court for execution. Although for the purposes of Section 235 of the old Civil P. C. they were in the names only of Kundan and Balbhadar and the guardian who was not a legally qualified guardian, yet in effect they were as if they ran in names of the other judgment-debtors also; or to use the exact words of explanation I, although taken out against the minors only they did take effect against all the judgment- debtors. To hold otherwise in the present case would have this effect that the minors would escape from the decree and then under the cover of the escape of the minors the majors would escape from the effect of the decree-holder and the decree-holder would be left fruitless. This being so we think we are hot putting an undue strain upon the explanation. We hold that the application for execution is not time-barred.