M BASAVAYYA Vs. MAJETI BAPANNA RAO SOWCAR

JUDGEMENT

(1.) The suit out of which this Second Appeal has arisen, was filed by the plaintiff for a declaration that the decree obtained by the 1 defendant in O.S. No. 86 of 1913 on the file of the District Munsif's Court, Masulipatam, is invalid as against him, and for an injunction restraining the 1 defendant from executing" that decree as against him (plaintiff) or his property. In that suit, the present plaintiff who was then a minor was impleaded as a defendant represented by the present 3 defendant as his guardian ad litem.

(2.) Both the Courts below have found that the guardian, ad litem was guilty of gross negligence in the conduct of that suit by omitting to set up an important plea, which was available as a ground of attack against the then plaintiff's claim. No attempt has been made to challenge this finding.

(3.) The question argued before us is one of limitation. It is admitted on both sides that this suit is governed by Art. 120 of the Limitation Act, but the dispute is as to the starting point for limitation. This is a residuary article for all suits which cannot be brought under one or other of the specific articles. It : provides a period of 6 years from the time when the right to sue accrues. The starting point is prescribed in general terms, and this expression may be taken to mean when the cause of action arises. The cause of action would comprise the facts which have necessarily to be proved in order to entitle the plaintiff to the relief asked for by him in a particular suit. In the present case, the mere fact that a decree was passed in O.S. No. 86 of 1913 as against the present plaintiff is not enough to entitle him to the relief asked for, but he must make out that his guardian ad litem suffered such a decree to be passed against him, on account of gross negligence. The decree in that suit was passed on 27th October, 1913. This plaintiff attained majority on 5 February, 1916 and the present suit was instituted on 19 December, 1921. The Lower Appellate Court has found, that the plaintiff came to know of the decree in question in or about March, 1921. If it should be held that the date of the decree is the starting point of limitation, the suit is barred under Art. 120 and even Section 8 of the Act is of no avail to plaintiff, the suit having been filed more than 3 years after his attaining majority. If the right to sue should be deemed to have accrued when all the facts constituting the cause of action became known to plaintiff, the suit would be within time.