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Prem Nath Tiwari and anr. Vs. Chatarpal Man Tiwari and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in(1915)ILR37All638
AppellantPrem Nath Tiwari and anr.
RespondentChatarpal Man Tiwari and anr.
Excerpt:
civil procedure code (1908), section 48 - decree in favour of minors--application far execution 12 years after date of decree--limitation--act no. ix of 1908 (indian limitation act), section 6. - - it is admitted that had the decree-holders been parsons of full age the present application would be clearly barred......up to one on the 6th of february, 1912, which was dismissed on the 3rd of december, 1912. the present application for execution was made on the 27th of may, 1913. it thus appears that the last application for execution was more than 12 years from the date of the decree. the judgement-debtors resisted execution relying - on section 48 of the code of civil procedure. this section provides that 'where an application to execute a decree, not being a decree granting an injunction has been made, no order for the execution, of the same decree shall be made upon any fresh application presented after the expiration of 12 years' from the various dates specified in the section. it is admitted that had the decree-holders been parsons of full age the present application would be clearly barred......
Judgment:

Henry Richards, C.J. and Piggott, J.

1. This is an execution appeal. It appears that a decree was obtained by minors on the 22nd of May, 1901. There were several applications for execution leading up to one on the 6th of February, 1912, which was dismissed on the 3rd of December, 1912. The present application for execution was made on the 27th of May, 1913. It thus appears that the last application for execution was more than 12 years from the date of the decree. The judgement-debtors resisted execution relying - on Section 48 of the Code of Civil Procedure. This section provides that 'where an application to execute a decree, not being a decree granting an injunction has been made, no order for the execution, of the same decree shall be made upon any fresh application presented after the expiration of 12 years' from the various dates specified in the section. It is admitted that had the decree-holders been parsons of full age the present application would be clearly barred. It is, however, contended that being minors they are still entitled to execute the decree. The first court-allowed the objection of the judgement-debtors. The lower appellate court reversed the order of the court of first instance. The learned Judge of this Court reversed the order of the lower appellate court and restored the order of the court of first instance.

2. Section 6 of the Indian Limitation Act, No. IX of 1908, provides as follows : '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 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 the third column of the first schedule.' It is admitted that the provisions of this section do not help the present decree-holders. It might have given them a right to execute their decree notwithstanding the expiration of the three years limit laid down in Article 182 of the schedule I, but it does not give them any exemption from the provisions of Section 48 of the Code of Civil Procedure. In the case of Moro Sadashiv v. Visaji (1891) I.L.R. 16 Bom. 536 Sergeant, C.J., held in a case similar to the present that Section 7 of the former Limitation Act (which corresponds to Section 6 of the present Limitation Act), only applied to cases dealt with by the statute itself.

3. He, however, goes on to say : 'The question referred to us must be decided by the general principles of law as to the disability of minors, to which the provisions of the Code of Civil Procedure must, in the absence of anything to the contrary, be deemed to be subject. The general principle is that time does not run against a minor; and the circumstance that he has been represented by a guardian does not affect the question.' If we were. to accept this statement of the law it would mean that a minor party to a suit through his guardian, whether as plaintiff or as defendant, is not bound to take any of the steps provided by the Code of Civil Procedure within the periods therein limited. For example it would be open to a minor judgement-debtor to reopen by way of appeal a question which had been finally decided years before. Just in the same way if a suit had been decided against a minor he might delay presenting his appeal for many years. The learned Judge of this Court has referred to the Judgment of Sir Meredith Plowden in Jhandu v. Mohan Lal Punj. Rec., 1894 C.J. 489, and also to the decision Ramana Reddi v. Babu Reddi (1912) I.L.R. 37 Mad. 186. In our opinion the Judgment of the learned Judge of this Court was correct and ought to be affirmed. We dismiss the appeal with costs.


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