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Hari Vs. Narayan Alias Sambhoji, a Minor, by His Guardian Chimabhai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom427
AppellantHari
RespondentNarayan Alias Sambhoji, a Minor, by His Guardian Chimabhai
Excerpt:
execution of decree - limitation--application for execution in accordance with law--limitation act, xv of 1877, schedule ii, article 179--decree against a minor--application for execution against minor's mother personally, but not at his guardian. - .....1883, against narayan, but nothing was done on it. it would prevent the bar of limitation if the earlier application could be considered as a sufficient one for the purposes of act xv of 1877, schedule ii, article 179, but not otherwise. the district judge has thought that the earlier application was not to be taken into account at all; but, having regard to the case of the general manager of the raj durbhunga under the court of wards v. maharajah coomar ramaput singh 14 m i.a., 605 we are of opinion that the mortgagor need not and ought not to be deprived of the fruit of his decree on account of the technical defect in his application of 1880. there was at that time no one to think or act for the infant narayan except his mother chimabai. what was brought home to her consciousness.....
Judgment:

West, J.

1. The decree in this case having been obtained against the infant Narayan, son of Babaji, represented in the case by his mother Chimabai, the judgment-creditor in 1880 sought execution for the costs awarded to him by the decree. Through error, however he sought that execution against Chimabai herself, instead of merely as guardian of her son. There was another application in 1883, against Narayan, but nothing Was done on it. It would prevent the bar of limitation if the earlier application could be considered as a sufficient one for the purposes of Act XV of 1877, Schedule II, Article 179, but not otherwise. The District Judge has thought that the earlier application was not to be taken into account at all; but, having regard to the case of The General Manager of the Raj Durbhunga under the Court of Wards v. Maharajah Coomar Ramaput Singh 14 M I.A., 605 we are of opinion that the mortgagor need not and ought not to be deprived of the fruit of his decree on account of the technical defect in his application of 1880. There was at that time no one to think or act for the infant Narayan except his mother Chimabai. What was brought home to her consciousness was, for all practical purposes, brought home to the consciousness of her son, and the execution in 1880 was not resisted by her. It proceeded against the property held by her then, as now, really for her son.

2. We, therefore, reverse the decree of the District Court, and restore that of the Subordinate Judge in execution. Each party to bear his own costs throughout.


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