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Zamir Hasan and anr. Vs. Sundar and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1900)ILR22All199
AppellantZamir Hasan and anr.
RespondentSundar and anr.
Excerpt:
execution of decree - limitation,--act no. xv of 1877 (indian limitation act) sections 7 and 8--minority. - - two cases decided by the calcutta high court and precisely in point have been cited to us......1884, p. 58. that decision applied the provisions of section 8 of the limitation act to a case of joint decree-holders. the application of section 8 to such a case has since been more fully considered by the madras high court in seshan v. rajagopala (1889) i.l.r. 13 mad., 236, and by the bombay high court in govindram v. tatia (1895) i.l.r. 20 bom., 383. these courts have held that section 8 of the limitation act applies only to those cases in which the act of the adult joint creditor is per se a valid discharge. the madras. high court in the earlier case pointed out that the question whether one of several decree-holders can enter satisfaction on behalf of all is one of procedure, and a rule of decision must be looked for in the code of civil procedure. they added:--'having regard to.....
Judgment:

Arthur Strachey, C.J.

1. The Lower Appellate Court has reversed the decision o the Court of First Instance and held the application of these minors barred by limitation on the authority of Hargobind v. Srikishen Weekly Notes, 1884, p. 58. That decision applied the provisions of Section 8 of the Limitation Act to a case of joint decree-holders. The application of Section 8 to such a case has since been more fully considered by the Madras High Court in Seshan v. Rajagopala (1889) I.L.R. 13 Mad., 236, and by the Bombay High Court in Govindram v. Tatia (1895) I.L.R. 20 Bom., 383. These Courts have held that Section 8 of the Limitation Act applies only to those cases in which the act of the adult joint creditor is per se a valid discharge. The Madras. High Court in the earlier case pointed out that the question whether one of several decree-holders can enter satisfaction on behalf of all is one of procedure, and a rule of decision must be looked for in the Code of Civil Procedure. They added:--'Having regard to Sections 258 and 231, we are of opinion that it is not the act of the joint decree-holders, but the act of the Court executing the decree, that is intended to operate as a valid discharge.' I agree with the views expressed in the Madras and Bombay cases, and I think that the decision in Har Gobind v. Srikishen is based on a wrong view of Section 8 and ought to be overruled.

2. The other questions which have been discussed in this appeal relate to the construction to be placed on Section 7 of the Limitation Act. The applicants for execution in this case are still minors. In 1888 an application was made for execution by their mother, the widow of one of the decree-holders. That application was within time under Article 179 of Schedule ii of the Act. By reason of the first explanation to Article 179, that application being made by a representative of one of the joint decree-holders, took effect in favour of all. Under the fourth head of the third column of Article 179, that application became a fresh point for reckoning the period of limitation. At the time when that application was made these present applicants were minors. Their application now in question was not made till February 1894. The question is, whether they are entitled to the benefit of Section 7. There are-still other persons jointly interested with them in the decree who are adults and who could not apply on their own behalf by reason of limitation. It has been contended on the authority of Seshan v. Rajagopala that Section 7 would not apply where some only, and not all, of the judgment-creditors are effected by a legal disability. On this point I agree with the Bombay High Court in Govindram v. Tatia that no such restriction can properly be placed on Section 7. Apart from that I think that the present application is protected by the terms of the section. Two cases decided by the Calcutta High Court and precisely in point have been cited to us. The first of these is Lolit Mohun Misser v. Janoky Nath Roy (1893) I.L.R. 20 Cal. 714; and the second is Norendro Nath Pahari v. Bhupendra Narain Roy (1895) I.L.R. 23 Cal. 374, I see no reason to dissent from those decisions. The result is that this appeal must be allowed and the decision of the first Court be restored, and the execution will proceed. The appellant will have his costs, including fees on the higher scale.

Blair, J.

3. I entirely concur in the order proposed and for the reason given by the learned Chief Justice.

Burkitt, J.

4. I am of the same opinion, and for the same reasons.


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