MUTHUKRISHNA RAJA Vs. VISWALINGA KADAVARAYAR

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge of Kumbakonam in A.S. No. 18 of 1935 by which he confirmed the order of the District Munsif passed in E.P. No. 620 of 1933 in O.S. No. 113 of 1921. O.S. No. 113 of 1921 was filed by three plaintiffs who were all minors on that date represented by their mother as next friend. The suit was to recover a sum of Rs. 2468-14-9 on a charge of the plaint properties. It appears that the amount was claimed as being the balance of the purchase money due to the plaintiffs. There was a compromise on foot of which there was a consent decree passed on 31 March 1922. The decree, which merely embodied the terms of the compromise, provided that a sum of Rs. 1700 with interest at six per cent, per annum from the date of plaint to date of the compromise should be paid within six months from the date of the decree and that in default execution was to be taken against the properties and against the person of the defendant and the amount recovered. As the plaintiffs were minors, it was also said that the money when paid into Court should be drawn on furnishing security. A similar provision was made that security should be given when execution was taken out and the money realized. There were a number of execution petitions filed to enforce this decree. The first of them was filed in the year 1925 by the mother acting as the next friend. It is said that there were a number of irregularities in that application and we may leave it out.

(2.) The second application was filed by plaintiff 1 who attained majority in the meanwhile. This application was filed on 10 March 1928 by plaintiff 1 for himself and as the next friend of plaintiffs 2 and 3. This was dismissed on 9 July 1928 and it is said that in this execution petition the relief that was asked was one that could not be claimed under the terms of the compromise decree and so we shall leave this also out of consideration. The next execution application was filed by plaintiff 1 for himself and on behalf of plaintiffs 2 and 3. This was filed on 16 August 1929. The application did not originally contain a schedule of the properties sought to be brought to sale and there were also some other defects. The application was returned for amendment and it was re-presented with the amendments including a list of the properties sought to be sold. It was finally dismissed on 16 January 1930 on the ground that plaintiff 1 did not furnish security for the amount which was already drawn either by him or by his mother. Then a fourth application was filed on 1 March 1930 by plaintiff 1 for himself and on behalf of plaintiffs 2 and 3. This again was dismissed on 30 June 1930. The Court directed plaintiff 1 to deposit into Court the amount which was already received by him or his mother and as the amount was not paid or security given for that amount, the application was rejected on 30 June 1930. The present execution application was filed on 10 April 1933. The question is whether this execution application is within time. Both the lower Courts rejected the application as barred by limitation.

(3.) It is urged for the appellants that until 1927 or 1928 plaintiff 1 was a minor and that until then limitation would not begin to run as all of them were minors. This is not disputed by the respondents. Limitation can therefore start only after plaintiff 1 attained majority, which we will take, was in the year 1927 as contended by the respondents advocate. The applications which plaintiff 1 filed on 16 August 1929 and 1 March 1930 have been translated and placed before me. If these two applications were in accordance with law, then under Article 182, Clause 5 limitation has to be counted from the date when the final order was passed on these applications. Taking the first of these applications, what is urged is that, to start with, the schedule of properties was not given, that post-diem interest was claimed when it was not permissible under the decree, that certain payments which had been made to the decree- holders were not given credit to in the execution petition and lastly that plaintiff 1 did not get himself appointed as next friend of plaintiffs 2 and 3. On these grounds the respondents learned advocate asks me to say that the application was not one in accordance with law. He also says that the order rejecting the application is not a "final order" within the meaning of Art. 182, Clause 5, Limitation Act, as amended recently.