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Lalta Prashad Vs. Suraj Kunwar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.239
AppellantLalta Prashad
RespondentSuraj Kunwar and ors.
Excerpt:
limitation act (xv of 1877), schedule ii, act 179, exp. 1 - execution application against some judgment-debtors only, whether, saves time against all judgment-debtors. - - 3. he contends that the executions taken out by him in 1904 and 1905, though taken out against the minors only, are, under the provisions of article 179 schedule 2, act xv of 1877, applications which take effect equally against the present respondents, and if they be held good, then the present application is not time barred......in the years 1904 and 1905, was of no effect and in consequence the present application was time barred.2. the court very properly refused to go into the former of these objections and as regards the latter it held that the application was time-barred. it accordingly rejected the application for execution and the decree-holder lalta prashad under the guardianship of gajadhar comes here in appeal.3. he contends that the executions taken out by him in 1904 and 1905, though taken out against the minors only, are, under the provisions of article 179 schedule 2, act xv of 1877, applications which take effect equally against the present respondents, and if they be held good, then the present application is not time barred. on behalf of the respondents it was contended that the decree.....
Judgment:

1. Lalta Prashad was one of two decree-holders, in whose favour a decree was passed for the recovery of money from certain judgment-debtors, two of whom were, at the time, when the decree was passed, minors, viz., Kundan Lal and Balbahadar Prashad. The decree was passed jointly against them under the guardianship of their mother, a married woman, whose husband was alive, and against others who were majors at the time. The decree bears date, the 17th November 1900. It was carried into appeal up to this Court and the decree was affirmed on the 19th April 1903. Thereafter execution was taken out against the minors on the 24th August 1904. When these execution proceedings were being taken out, the minors were still represented by the lady, who had represented them throughout the suit. It then occurred to the minors or some one on their behalf that the decree, so far as they were concerned, was a decree that could be challenged inasmuch as, when it was obtained, the person who purported to represent them was not legally qualified, to do so. They, accordingly, brought a suit to have the decree set aside and the execution proceedings were for the time stayed by order of the Court. The suit was dismissed by the Court in which it was first brought and the decree-holders at once resumed their application for execution, again naming the lady already mentioned as guardian. In the meanwhile, an appeal was brought on behalf of the minors and on the 1st July 1907, it was held by this Court that the decree, obtained on the 17th November 1900, was inoperative as against the minors. Thereupon, the decree-holders lost no time in taking out execution proceedings against the other defendants. The defendants raised two objections, firstly, that there was an understanding between the decree-holder and themselves that the decretal money should be in the first instance realized from the property of the minors, and secondly, that the application, in the years 1904 and 1905, was of no effect and in consequence the present application was time barred.

2. The Court very properly refused to go into the former of these objections and as regards the latter it held that the application was time-barred. It accordingly rejected the application for execution and the decree-holder Lalta Prashad under the guardianship of Gajadhar comes here in appeal.

3. He contends that the executions taken out by him in 1904 and 1905, though taken out against the minors only, are, under the provisions of Article 179 Schedule 2, Act XV of 1877, applications which take effect equally against the present respondents, and if they be held good, then the present application is not time barred. On behalf of the respondents it was contended that the decree being, so far as the minor was concerned, null and void, the applications of 1904 and 1905 were applications to execute a null and void decree and cannot have the effect of keeping the decree alive against the other judgment-debtors.

4. No case directly bearing upon this question has been placed before us and the matter is not free from difficulty. But after careful consideration of the words, used in Expl. 1 of Article 179, Schedule 2, of the Limitation Act, we are prepared to hold that the applications, at the time when they were made, namely in 1904 and 1905, were applications in accordance with law to the proper Court for execution. Although, for the purposes of Section 235 of the old Code of Civil Procedure, they were in the names only of Kundan and Balbadhar and the guardian who was not a legally qualified guardian, yet in effect they were, as they ran, in the names of the other judgment-debtors also: or, to use the exact words of Expl. 1, although taken out against the minors only, they did take effect against all the judgment-debtors.

5. To hold otherwise in the present case would have this effect that minors would escape from the decree and then under the cover of the escape of minors, the majors would escape from the effect of the decree and the decree-holder is left fruitless. This being so, we think we are not putting an undue strain upon the explanation. We hold that the application for execution is not time barred.

6. We, accordingly, set aside the decree of the lower Court and return the application to the Court below with direction to re-admit it in its original number in the register and to dispose of it according to law. Under the circumstances we make no order as to costs.


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