1. This second appeal by a decree-holder in an execution case arises out of the following state of facts. One Munshi Lal held a decree absolute for sale on a mortgage passed on the 19th of December, 1906. He took out execution of the same on the 23rd of September, 1909, but died while the execution proceedings were pending. On the 29th of September, 1910, his sons Joti Prasad and Rati Ram, applied to be brought on the record as his legal representatives. The former was of full age and the latter a minor; the application was in the names of both, and Joti Prasad also asked to be allowed to act as the next friend of his minor brother. Notices were issued to the judgment-debtors to appear on the 10th of December, 1910, and show cause why this application should not be granted. In the mean time Joti Prasad died; and on the 24th of November, 1910, the pleader whom he had engaged informed the court of this fact and stated that he had no instructions to proceed further with the application. The court took note of this statement, but directed the matter to come up for orders on the 10th of December, 1910, the date fixed. On that date no one appeared on behalf of the decree-holder, and the court ordered the application for execution originally made by Munshi Lal to be struck off the file of pending cases as an application which had proved infructuous.
2. Rati Ram, having in the mean time attained majority, presented to the court on the 16th of July, 1917, the application out of which this appeal arises. It is drawn up in the prescribed form for applications for execution of decrees, and the relief sought is set forth in the following words:
In continuation of the application for execution No. 889 of 1909, it is prayed that it may be perused and formal orders for execution passed.
3. The lower appellate court has dismissed the application as time-barred, and we have to decide if this order is right.
4. It is contended for the appellant that the present application should be treated as one asking the court to take up again the application of the 29th of July, 1910, as one in respect of which no proper orders have yet been passed, and to dispose of the same according to law. I should be glad to help the appellant if I could do so without contravening the law which all courts are bound to administer; but I cannot see my way to dealing with the matter on this footing. The application presented by Joti Prasad asked the court to do something which it could no longer do when Joti Prasad was dead; pending some further application on behalf of the minor Rati Ram no fresh steps in execution could be taken. Moreover, the order of the 10th of December,1910, by which Munshi Lal's execution application of the 23rd of September, 1909, was dismissed as infructuous, disposed of the whole matter for the time being. If Joti Prasad and Rati Ram had both been on the record as decree-holders at the time of the former's death, some case might have been made out for the appellant by invoking the provisions of Order XXII, Rule 2, of the Code of Civil Procedure; but as the case actually stood the court had to wait for a fresh application to bring Rati Ram alone on to the record as legal representative of the deceased decree-holder, Munshi Lal. The case cannot be brought under the provisions of Order XXII, Rule 3, because nothing in that rule applies to proceedings in execution of a decree: vide Order XXII, Rule 12.
6. The main question dealt with by the courts below is whether Rati Ram's application of the 16th of July, 1917, is or is not barred by limitation under the provisions of Article 182 of the first schedule to the Indian Limitation Act, No. IX of 1908. It was made more than three years after the application of the 29th of September, 1910, by which Joti Prasad asked, on behalf of himself and of his minor brother, that they might be permitted to continue the execution proceedings as the legal representatives of their deceased father. On the other hand, it was made within three years of Rati Ram's attaining majority. The decision, therefore, depends on whether time had begun to run as against both Joti Prasad and Rati Ram; and this again on the question whether Joti Prasad could have given valid discharge. Under Section 8 of the former Limitation Act, No. XV of 1877, it was doubted whether the provisions of that section applied at all to joint decree-holders, and there was room for the view that the 'discharge' of a judgment-debtor's liability was always given by the order of the court, and never by the mere act of any decree-holder. In face of some conflict of authority on this point the Legislature made it clear that the provisions of Section 7 of the present Limitation Act, No. IX of 1908, do apply to joint decree-holders, wherever one of them can act in the matter on his own authority without the concurrence of the other. In the present case the lower appellate court was quite justified in presuming on the state of facts disclosed by this record, that Joti Prasad was the manager of a Hindu joint family consisting of himself and his brother. It does not appear that there were any other members of the family; so that Joti Prasad was in fact the sole adult male member. He could have sued as manager of the joint family for the recovery of the mortgage-debt, if his father had not already obtained a decree for the same; a fortiori he could have taken out execution of the decree and could have given a valid discharge for the same.
7. I do not think any purpose would be served by my discussing the various cases to which we were referred in the course of argument. All cases anterior in date to the passing of Act No. IX of 1908 require to be re-considered in the light of the words then inserted is Section 7 of the said Act. The Madras case on which the lower appellate court has relied is directly in point and supports the decision arrived at. I do not think there is any case of this Court to the contrary; the learned Munsif relied on a case the facts of which were materially different, in that the period of limitation for a fresh application for execution began to run against decree-holders all of whom were minors. This Court has never held, and I think would be most reluctant to hold, that in all cases in which a fresh period of limitation opens as against a number of decree-holders, members of one and the same family, one of whom happens to be a minor, it is open to the remaining decree-holders to remain quiescent for a period which might well extend to eighteen or twenty years, and then to put forward the said minor, after he had attained majority, to execute the whole decree for their benefit as well as his own. I do not see how we could hold the present application to be within time without, in effect, committing ourselves to some such proposition as the above. The ingenious argument addressed to us on behalf of the appellant seemed to me to be based, in the last resort, on the contention that the provisions of Section 6 and Section 7 of the Indian Limitation Act (No. IX of 1908) must be read so as to be mutually exclusive. I do not think they are mutually exclusive; the latter section supplements the former.
8. I have carefully considered the question whether there was any application in this matter of which it could be said that the right to make the same accrued to Rati Ram on the 10th of December, 1910, or on some other date on which he, the minor, was the only person entitled to make such application. It must be noted that the execution court's order of the 10th of December, 1910, was an ex parte order against the decree-holder. It struck me that Rati Ram might conceivably have presented an application to the execution court, asking for that ex parte order to be set aside on the ground that he could show good cause for the non-appearance of any person on behalf of the decree-holder on the date above mentioned. The point was not argued out before us, and I do not express any opinion as to whether such an application might or might not have succeeded. It is sufficient to point out that the limitation period for such an application would be thirty days, and that in the present case the said thirty days would begin to run from the date on which Rati Ram attained majority. The precise date of his attaining majority is not given in this record, but it is stated to have occurred in the early part of the year 1917. The present application made on the 16th of July, 1917, cannot have been within thirty days of Rati Ram's attaining majority. It is impossible, therefore, for us to think of treating this application as one to have the ex parte order of the 10th of December, 1910, set aside. I would therefore dismiss this appeal with costs.
9. I agree. It is not really necessary in this appeal to consider all the authorities which have been discussed. No doubt trouble has arisen in the construction of these two sections, Sections 6 and 7, of the Limitation Act by reason of the use of the language in Section 7, 'where a discharge can be given'. It is no doubt true that when the matter is in the execution court it is literally true, speaking of it as a matter of procedure, to say that a discharge cannot be given, because payment, for example, has to be made in and through the court or certified by the court, so that the discharge becomes an order of the court itself. But I take the very clear view, and I think it removes all the difficulties in this case, that Sections 6 and 7 are dealing, not with procedure, but with the legal status of individuals, and the expression 'where a discharge can be given' is merely intended in Section 7 to be a definition of a person who in the ordinary legal language is described as being 'able to give a discharge'. That is a definition of his legal capacity in relation to the other persons jointly interested, and not a description of his physical powers under the procedure of the execution court.
10. The appeal is dismissed with costs.