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Ram Nath Tewari Vs. Chatterpalman Tewari - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All349(2); 30Ind.Cas.521
AppellantRam Nath Tewari
RespondentChatterpalman Tewari
Excerpt:
limitation act (ix of 1908), section 6, applicability of - civil procedure code (act v of 1908), section 48--limitation--minority--execution. - - it is admitted that had the decree-holders been persons of full age, the present application won d 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 may the 27th, 1913. it thus appears that the last application for execution was more than twelve years from the date of the decree. the judgment-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 twelve years' from the various dates specified in the section. it is admitted that had the decree-holders been persons of full age, the present application won d be clearly.....
Judgment:

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 May the 27th, 1913. It thus appears that the last application for execution was more than twelve years from the date of the decree. The judgment-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 twelve years' from the various dates specified in the section. It is admitted that had the decree-holders been persons of full age, the present application won d 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 judgment-debtors. The lower Appellate Court reversed the Court of first instance. The learned Judge of this Court reversed the lower Appellate Court and restored the order of the Court of first instance.

2. Section 6 of the Indian Limitation Act, 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 provision of this section does 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. Visajt Raghu Nath 16 B. 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 Civil Procedure Code 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 judgment-debtor to re-open 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 128 P.R. 1894 and also to the decision of Rebala Ramana Reddi v. Rebala Babu Reddi 18 Ind. Cas. 586 : 37 M. 186 : 13 M.L.T. 79 : (1913) M.W.N. 114 : 24 M.L.J. 96. 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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