1. The appellants are the original decree-holders. They obtained a money decree against the judgment-debtors. Thereafter they filed execution petition No. 35 of 1971. In that petition attachment was levied on the property of the judgment-debtors. Judgment-debtors raised objection to that attachment and contended that the execution of the decree was barred by time. The executing Court upheld the contention raised by the judgment-debtor and dismissed the execution petition.
2. It is that order which is called in question by the decree-holders in this appeal.
3. It has been contended by Mr. Sri Krishna that the Court below was in error in holding that the execution was barred by time. In support of his contention the learned counsel has relied upon Section 7 of the Limitation Act. In order to appreciate the contention which he has raised it is necessary to note two dates. The decree under Section was passed on 10-9-1959 and the execution petition was filed on 5-8-1971. These two dates show that the execution petition was filed within 12 years from the date of the decree. However under the old Limitation Act it was necessary to take a step-in-aid within a period of three years. The old Act was in force when the decree was passed and for more than 3 years thereafter. There is no dispute about the fact that within three years from the date of the decree, that is on or before 10-9-1962, no step-in-aid was taken. Obviously therefore under Article. 182 of the old Limitation Act the execution of the decree was barred by time after 10-9-1962.
4. However it has been contended by Mr. Sri Krishna that since, out of four decree-holders who had obtained the decree under execution two were minors all the decree-holders were entitled to the benefit of Section 7 of the Limitation Act. According to him one of the decree-holders was born on 1-6-1950 and he attained majority on 1-6-1971. Another decree-holder was born on 12-4-54 and attained majority long after the present execution petition was filed. The question which has therefore arisen before me relates to the applicability of Sections 6 and 7 of the Limitation Act.
5. Section 6 provides that 'Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor, or an insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in third column of the first schedule'. If there was the sold decree-holders Section 6 would have applied to his case. Section 7 deals with the case of several persons who are entitled to make an application for execution or to institute a suit. In inter alia provides that 'Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased'. Section 7 applies to a case where there are several decree-holders and where one or more of them are under legal disability specified in Section 6. In such a case if a valid discharge can be given without the concurrence of the person under legal disability or a minor then time begins to run against all and once it begins to run it does not stop. It has been argued by Mr. Srikrishna that two major decree-holders could not have given a valid discharge of the decretal amount by virtue of the provisions of Order. 32, Rule. 6 of the Civil Procedure Code. It inter alia provides that 'A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other moveable property on behalf of a minor either by way of compromise before decree or order or under a decree or order in favour of the minor'. Rule. 6 sub-rule (1) has a very limited application. Its amplitude is confined to receipt of moneys or receipt of moveable property on behalf of the minor. Where moneys and any other moveable property is to be received on behalf of a minor by his next friend or guardian it cannot be received, even though it is payable under a decree or order except with the leave of the Court. It appears therefore that though the next friend or guardian can receive on behalf of the minor moneys and other things in general, he cannot receive the moneys or other movable property payable to a minor under a decree or order in his favour except with the leave of the Court. If Order. 31, Rule. 5 applies then it is clear that the next friend or guardian cannot give a valid discharge to a judgment-debtors on behalf of a minor in case of moneys or movable property payable to or receivable by the minor under a decree. In such a case the benefit of Section 7 would be available to a minor decree-holder. The question, which has however been canvassed is whether one of the major decree-holders can give valid discharge to the judgment-debtor in his own right on behalf of all judgment-debtors including minors. It is contended that if a major decree-holders can in his own right give a valid discharge on behalf of all decree-holders including minors to a judgment-debtors in respect of money payable under a decree to all of them, he does not do so as next friend or guardian. In other words Order. 32, Rule. 6 guardian acts as a next friend or guardian and not in any other capacity.
6. Now in the instant case the decretal amount was payable to four decree-holders. Two of whom were majors at the date of the decree and two of whom were minors. One of the major decree-holders was acting as the guardian of the minor decree-holders. Could the two major decree-holders in their own right as decree-holders have given a valid discharge to the judgment-debtors in respect of the decretal debt If the judgment-debtors had out of Court gone to one of the two major decree-holders and paid the decretal debt which he owed to them and to two minor decree-holders jointly, certainly the major decree-holders could have in their own right (as distinct from one of them being the next friend of the minor decree-holders) given a valid discharge. By virtue of the provisions of Order. 32, Rule. 6 what is prohibited is the action on the part of the next friend or guardian to receive moneys or other movable property on behalf of the minor except with the leave or permission of the Court. It does not prevent such a person from receiving moneys or other moveable property from any other person in his own right.
7. In Bholanand Jha v. Padmanund Singh, (1902) 6 Cal WN 348 a somewhat similar question arose under the Limitation Act. then in force. The principle which has been laid down in that decision is that where an adult plaintiff is entitled to obtain a decree amount and give a valid discharge, the matter would fall directly under Section 8 of the Limitation Act. and that the provisions of Section 7 would not be available to the plaintiffs.
8. In that case the decretal amount was made payable by instalments. It was provided that in case of default in payment of any one instalment the entire decretal amount would become due and payable. In that case some of the decree-holders were minors when the decree was obtained and continued to be minors until the execution proceedings were instituted. It was contended that the time began to run against the decree-holders from the date of the decree. It has been laid down that any of the major plaintiffs could have received the decretal amount in his own right and given a valid discharge to the judgment-debtors. One of the plaintiffs in that case was undoubtedly an adult otherwise competent to give a valid discharge to the judgment-debtors. Therefore it was held by the Division Bench of the Calcutta High Court that the case fell under Section 8 of the Limitation Act. then in force and that the minor plaintiffs were not protected by the provisions of Section 7. This decision lends full support to the view which I have expressed.
9. In Kamleshwari Prasad Singh v. Shivachandra (AIR 1949 Pat 212) the question which arose was slightly different. In that case some of the decree-holders were minors and the guardian of the minor decree-holders was not a co-decree-holder. In view case some of the decree-holders were minors and the guardian of the minor decree-holders was not a co-decree-holders it was held by a Division Bench of the Patna High Court that the guardian of the minors could not give a valid discharge on behalf of the minor decree-holders within the meaning of Section 7 of the Limitation Act. It was not a case of an adult co-decree-holders giving discharge to the judgment-debtors in respect of decretal debt on behalf of all decree-holders including the minors. It has however been observed in that decision that in a case where a co- decree-holders could give a valid discharge, Section 7 of the Limitation Act. would not extent the period of limitation. The last mentioned proposition supports the view which I have expressed.
10. In Abed Hossain v. Abdur Rahaman (AIR 1935 Cal 631) a somewhat similar question under Section 7 of the Limitation Act. arose. It has been observed in that decision that Section 7 contemplates discharge by a person who, by virtue of his own legal capacity under the substantive law is able to give a discharge. The Section requires that a co-decree-holder in addition to his capacity as a co-decree-holder must have such a legal capacity as would empower him alone to realise the decretal debt and give a discharge on behalf of all decree-holders without putting the decree into execution even if his minor co-decree-holder had been under legal disability and had no capacity to give his assent. In other words his legal capacity must enable him alone to give a valid discharge and the consent of the other decree-holders must not be necessary at all in the exercise of that legal capacity. The law clothes him with a right to give a valid discharge for the whole debt irrespective of the consent of the other decree-holders. This proposition has been laid by the learned Judges there with reference to the partners of a firm and the Karta of a joint Hindu family. It has also been held that the legal capacity of a certificated guardian to realise moneys payable to a minor decree-holders under a decree of the Court does not fulfil the test of his having some other independent capacity to give a valid discharge to the judgment-debtors on behalf of all the decree-holders. It has been further observed that Section 7 contemplates discharge by a person who by virtue of his own legal capacity under the substantive law is able to give a discharge. It does not contemplate a legal capacity which only empowers a person to realise a debt on behalf of another by the process of execution with the permission of the Court. The decision lends support to the instant case inasmuch as it lays down that a co-decree-holder can give a valid discharge if he has the legal capacity to do so. In my opinion where there are several decree-holders jointly holding a decree some of whom are minors and some of whom are majors, one or more major decree-holders can receive the moneys from the judgment-debtors and give a valid discharge on behalf of all the decree-holders. When they receive moneys and give a valid discharge they do so in their own right as joint decree-holders and not on behalf of the minor decree-holders. In the instant case since two of the decree-holders were competent in their own right to receive the decretal amount and to give a valid the decretal amount and to give a valid discharge of the decretal debt Section 7 of the Limitation Act would not be available to the minor decree-holders. The first contention raised by Mr. Srikrishna has therefore no substance and it is accordingly rejected.
11. The second contention which has been raised by the learned counsel is that upon the institution of the execution petition a notice was issued to the judgment-debtors in response to which the judgment-debtors did not appear. Thereafter the attachment was levied and it was after the attachment was levied that he appeared and raised the objection as to the limitation. According to Mr. Srikrishna having failed to appear in response to the notice issued by the executing Court having failed to raise an objection at that stage it was not open to the judgment-debtors to raise the objection at a subsequent stage. This contention was not raised before the executing Court and it cannot be allowed now to be raised. It is true that the memorandum of appeal contains a ground which has a bearing on this aspect. However the record does not show that notice to the judgment-debtors was issued and that he was not careful enough to appear in response to the notice. If that contention was raised before the execution Court it would have considered it and recorded its finding. In the absence of any material on record it is extremely difficult for me to permit Mr. Srikrishna to raise this contention.
12. However he has invited my attention to a Bench decision of the Madras High Court in Venkatranga Reddi v. Sithamma (AIR 1941 Mad 440). It has been laid down in that decision that the principle of respondents judicata is applicable to execution proceedings though Section 11 in terms does not apply. It has been further observed that where the judgment-debtors appears and objects to the execution proceedings and his objections are overruled an order under Order. 21, Rule. 23(1) binds him. Similarly where he does not appear and an order is made under Order. 21, Rule. 23 it equally binds him and operates as respondents judicata between the parties. It binds him if the notice id duly served upon him. That is what has been stated in that decision. Therefore what the Madras High Court has laid down in that decision is that an order made against a judgment-debtors in his absence or after hearing him (indeed after notice has been served upon him) militates against him in raising any objection in subsequent proceedings. In the instant case the judgment-debtors did not raise the present objection in subsequent proceedings. He raised the objection in the same proceedings after the attachment was levied.
13. It is necessary to remember in this contest the provisions of Sub-section (1) of Section 3 of the Limitation Act which provides that every suit instituted, appeal preferred, application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. I lay emphasis on the expression 'although limitation has not been set up as a defence'. For the reasons which I have stated I am unable to uphold the second contention raised by Mr. Srikrishna. Both the contentions raised by the learned counsel fail and they are rejected.
14. The appeal therefore fails and is dismissed. No costs.
15. Appeal dismissed.