Charles Arnold White, C.J.
1. The question which has been referred to the Full Bench is as follows: 'When there are two or more joint-decree-holders, and the execution of the decree is barred by limitation as against one or more of them whether one who is not so barred owing to minority can execute the decree for the benefit of sill or, if not, for his own benefit alone?' In other words, whether the minority of one of several joint judgment-creditors saves execution of the decree from being time-barred during the minority of the minor plus three years.
2. In the case in which the order of reference was made, the material facts and dates were as follow:-- On June 30th, 1892, a joint decree was passed in favour of three brothers, who at the date of I he decree, were all minors. On January 8th, 1896, the last application for execution previous to the present application was made. At this date two of the brothers had attained majority and one was a minor. On February 27th, 1899, the present application was made. The youngest brother had attained majority less that three years before the application.
3. The first question for determination is--Are joint execution-creditors 'joint-creditors' within the meaning of Section 8 of the Limitation Act.'
4. In my opinion they are not. This view has been adopted by all the High Courts. See I.L.R. 13 M. 236 I.L.R. 14 C. 50; I.L.R. 22 A. 199; and I.L.R. 20 .B. 383.
5. As regards Section 7. I think the section only applies when all the joint execution creditors were under disability at the time the period of limitation began to run. With reference to this point the Madras decisions are in conflict with those of the other High Courts. In Govindram v. Tatia I.L.R. 20 B. 383 their Lordships say, 'under the provisions of Section 231 of the Civil Procedure Code, the minor was entitled equally with the other judgment-creditors to apply for execution of the whole decree for the benefit of all the decree-holders; and as ho was a minor when the decree was passed, and when the last application for execution was made, ho is entitled to the benefit of Section 7 of the Limitation Act, and can apply for execution within three years of attaining majority;' and they held that the reasoning in Perry v. Jackson 4 T.R. 579 did not touch the point inasmuch as Section 7 applies to an application like the present one which any one of the judgment creditors may present by himself under the provisions of Section 231 of the Civil Procedure Code.' Now, sSection 231 merely empowers the court, where there is a joint decree in favour of more persons than one, to make an order, on the application for execution of one or more of the joint-decree-holders for the benefit of all, for protecting the interests of the persons who have not joined in the application if the court sees sufficient cause for allowing the decree to be executed. I do not see how a rule of procedure such as this can be prayed in aid for the purpose of construing the words 'person entitled to make an application' in Section 7 of the .Limitation Act. it seems to me these words mean a person entitled to make an application on his own behalf, and that their meaning is not affected by the fact that by a rule of procedure the court has a discretion, in a certain case, to make an order which shall enure for the benefit of parties who have not joined in the application. The word in Section 7 of the Limitation Act is 'entitled.' That means entitled as of right. The phraseology of Section 231 of the code shows clearly that the order which by that section the court, in the exercise of its discretion, is empowered to make, cannot be asked for as of right. In I. L.R. 22 A. 199 the court upon this point concurred with the Bombay decision above referred to, and the Calcutta decisions Lolit Mohun Misser v. Janoky Nath Roy I.L.R. 20 C. 714 and Norendra Nath Pahari v. Bhupendra Narain Roy I.L.R. 23 C. 374 are to the same effect.
6. The question has again been recently considered by the Calcutta High Court in Surja Kumar Dutt v. Arun Chunder Roy I.L.R. 28 C. 465 and the learned judges re-affirm the view which had been taken by the Calcutta High Court and dissent from the Madras decisions. I have carefully considered the reasoning on which their decisions are based, and, with all deference to the learned judges of the other High Courts, I am of opinion that the cases reported, in I.L.R. 13 M. 286 and I.L.R. 16 M. 436, were, as regards the point in question, rightly decided.
7. There remains the question when does the period of limitation for the execution of a decree begin to run. I am unable to adopt the view taken by the learned judges in the case reported in I.L.R. 20 C. 714 that if the person entitled to execution is under a disability at the time when any one of the starting points referred to in the third column of Article 179 commences, the operation of the Limitation Act is .suspended during the continuance of the disability. It. seems to mo that the effect of paragraphs 2, 8, 4, 5 and ii of the fourth column is to fix one starting point in the events referred to respectively in these paragraphs, and not to leave it open to the party who seeks the benefit of Section 7 to select his own starting point. It seems to me clear that where there has been an application according to law to the proper court for execution, the period begins to run from the date of that application. The first paragraph of column 3 of Article 179 of the Limitation Act provides the time when, in the absence of the circumstances referred to in the succeeding paragraphs of the 3rd column, the period begins to run--that is the date of the decree. Paragraph 4 of the t3rd column says expressly that where there has been an application for execution in accordance with the period begins to run from the date of the application. This is one of the exceptions engrafted on the general rule laid down in the first paragraph.
8. The facts of the present case come within the exception. Think the application made in 1896 was in accordance with Jaw although it may have been informal, and when the application was made, all the joint, decree-holders were admittedly not under disability. Explanation 1 to the 3rd column of Article 179 states that if the decree is a joint decree in favour of more persons than one, an application, by one of such persons provides a fresh starting point in favour of all, but the explanation throws no light on the question whether, if at the time the statute begins to run from the fresh starting point, some of the persons are under disability and some are not, the persons then not under disability are entitled to the benefit of Section 7 of the Act.
9. In the present case the decree was a joint decree and, it seems to me that it is no longer executable as a joint decree, and J see no reason for holding that, although it is not executable as a joint decree, it is executable quoad the interest of one of the decree holders, that is, as a decree under which the interests of the joint decree holders have become severed.
10. I concur.
11. I concur.
12. I concur.
Bhashyam Aiyangur, J.
13. In my judgment in appeal No. 28 of 1900 decided on the 28th August 1901 Ahimsa Bibi v. Abdul Kader Saheb I.L.R. 25 M. 26 I had to consider the application of Sections 7 and 8 of the Limitation Act to a suit for an account and a share of the profits of a dissolved partnership brought by the legal representatives of a deceased partner, one of whom was a minor at the time of the death of that partner. In expressing my concurrence with the decision of this court in Seshan v. Rajagopala I.L.R. 13 M. 236 in so far as it bears upon the construction of Section 7 taken by itself and independently of Section 8, I stated as follows:--'In cases in which the right of suit vests jointly in a plurality of persons, I am clearly of opinion that if Section 7 stood by itself and Section 8 had not been enacted, the protection given by Section 7 will extend only to cases in which each and all of the persons jointly entitled to sue were affected by disability at the time from which the period of limitation is to be reckoned, and that if any one of them was then free from disability, the suit would be governed by the ordinary law of limitation and Section 7 cannot be availed of by all or any of them for the simple reason that the cause of action is a joint one.' Adverting then to Section 8, I stated that though it did not expressly provide, (as the latter part of the corresponding Section 8 of Act IX of 1871 did) 'that in a case in which one or some alone of the persons entitled to sue worn affected by disability at the time when the cause of action accrued jointly to all the persons entitled, time will not run against any of them if a complete discharge of the obligation could not be given by one or more of the persons free from disability without the concurrence of the person or persons labouring under1 disability,' yet that was necessarily implied in the former part of the section. I then deduced the following propositions from the combined operation of Sections 7 and 8 in a case in which the right of suit resides jointly in a plurality of persons:--'(a) Such suit cannot be barred in part in respect of some and not barred in part in respect of the others; (b) if any one of several joint creditors or claimants is under a disability and a full discharge could be given without his concurrence by all or any of the other joint creditors or claimants, the suit will be governed by the ordinary law of limitation and time will run against all; (c) but where no such discharge can be given, time will not run against any of them until all have ceased, to be under dis-1 ability ; (d) if all were affected by disability, time will not run against any of them until all have ceased to be under disability, unless one of them, who in the meanwhile has ceased to be under disability becomes capable of giving a complete discharge without the concurrence of the others, in which latter case, time will run against all from the time when one of them has thus become capable of giving such discharge (Illustration (b) to Section 8, cf. I.L.R. 14 C. 50
14. As the deceased partner was governed by the Muhammadan Law, I held that none of his legal representatives who were coheirs was, within the meaning of Section 8, competent to give a discharge which would bind the minor heir and that, therefore, the third of the above propositions, (viz)., (c), was applicable to the suit and that the same was, therefore, not barred by the law of limitation.
15. The question referred to the Full Bench in the present case involves the application of Sections 7 and 8 of the Limitation Act to the execution of a decree awarding a sum of money to three brothers, members of an undivided Hindu family, who being all minors, were represented by their mother as next friend. The decree was passed on the 30th June 1892, when all the three joint decree-holders were minors. The present application for execution was made on the 27th February 1899 by all the three brothers as joint decree-holders, having all attained their majority by that time, the youngest and he alone within three years prior thereto. The last preceding application for execution was made more than three years prior to the present application, i.e., on the 8th January 1896, when two of the brothers had attained, majority and the youngest alone was a minor. For the purposes of this reference, I shall assume that that application was made in accordance with law.
16. The question referred to is whether the youngest brother can execute the decree for the benefit of all or, if not, whether he can execute it for his own benefit alone. If joint decree-holders are 'joint-creditors' within the meaning of Section 8, it will follow, in my opinion, that the application of the 27th. February 1899 is not obnoxious to the law of limitation, whether the same be regarded as an application for execution of the whole decree made by the youngest brother alone under Section 231, C.P.C, or by all the three brothers jointly, inasmuch as no discharge of the decree could validly be given either by the senior of the major brothers or by both without the concurrence of the youngest. Section 257, C.P.C, expressly provides that all money payable under a decree, should be paid, unless otherwise directed by the decree, either (a) into the Court whose duty it is to execute the decree, or (b) out of Court to the decree-holder. I need hardly add that the expression 'decree-holder' in the singular will include also the plural, and if the decree be in favour of two or more persons as joint decree-holders, the amount should be paid to all of them Tarruck Chunder Bhattacharjee v. Devendronath Sanyal I.L.R. 9 C. 831 just as if the amount were paid into Court it will have to be drawn from the Court by all of them under a joint receipt. Even assuming that, as held in Barbar Moran v. Ramanna Goundan I.L.R. 20 M. 461 a release by one of several joint promisees without the knowledge or concurrence of the others, will, under the Indian Law, bind such others, such a doctrine will not be applicable to the case of judgment-creditors in regard to whom the processual law as laid down in Section 257, C.P.C., will have to be strictly observed. A payment made out of Court only to one of several joint decree-holders cannot bind the others unless he was also constituted by them an agent for the purpose, in which case alone the payment can be recorded as certified under Section 258, C.P.C. The mere fact that one of the joint decree-holders is the managing member of an undivided Hindu family consisting of the joint decree-holders, will not empower him to give a valid discharge of the decree debt, without the concurrence of the remaining members any more than it will empower him to execute the whole decree as of right, without the concurrence of the remaining decree-holders. Under Section 231, C.P.C., any one of several joint decree-holders constituting a Hindu family, whether he be the managing member or not, may, if the Court sees sufficient cause, be allowed to execute the whole decree, and in that case the Court should pass such order as it deems necessary for protecting the interests of the persons who have not joined in the application. As a general rule such order will be a direction to the applicant for execution to furnish sufficient securities for the protection of the interests of such persons. If payment be made out of Court; to a sole decree-holder or several joint decree-holders, is the case may be, such payment will, of course, be a sufficient discharge of the decree debt (vide Section 259(b)), and it is not the act of the Court in recording such payment as certified that operates as a discharge, as held in I.L.R. 13 M. 236. Under Section 258, C.P.C. the act of the Court simply consists in recording satisfaction if the decree-holder or decree-holders certify to the Court payment to them out of Court, or if such payment is proved by the judgment debtor adversely to the decree-holder or decree-holders, within the time prescribed by Article 173-A. of the second schedule to the Limitation Act. A discharge not so recorded cannot be recognised by the Court executing the decree since, for purposes of executing the decree, such record is by statute made indispensable evidence far proving the, alleged discharge. But payment to one or some of several joint decree-holders cannot operate as a discharge of the decree-debt, nor be recorded as certified under Section 258, C.P.C., unless, of course, such person or persons were duly authorized by the others to accept such payment in entire or partial satisfaction of the decree. In the case of a sole decree-holder or one of several joint decree-holders being a minor, his next friend or guardian for the suit, whoever he may be, cannot, under section 461, C.P.C., without obtaining leave of the Court and as a general rule also furnishing security, receive any money payable under the decree solely to the minor or to him jointly with the-other decree-holders.
17. It has been held by all the High Courts I.L.R. 13 M. 236 that Section 8 of the 'Limitation Act is not applicable to execution creditors, and I fully concur in that view, though, if I understand aright the reasoning on which it is based, I must with all deference say that the reasoning does not warrant the conclusion arrived at, but would lead to the opposite conclusion. My reasons for holding that execution creditors' are altogether outside the scope of Section 8 are that the were so under the corresponding Section 8 of Act IX of 1871, and that though the said section was altered by Act XV of 1877 in respect of its latter hall,--which was necessarily implied in the first half by substituting in place of the latter half a provision that limitation is to commence from the time when one of several joint creditors or claimants who were all labouring, under disability becomes capable of giving a discharge, thus modifying Section 7--yet its scope was not extended, as in the case of Section 7. The corresponding Section 7 in Act IX of 1871 was confined to suits only and Section 8 in that Act could therefore relate only to suits. When Act XV of 1877 was passed, the scope of Section 7 was enlarged by including therein 'applications' also, the result of which was that so for as Section 7 was concerned, as in the case of suits so in the case of applications, if the person or persons entitled to make the application were at the time from which the period of limitation was to be reckoned all under disability, that application could be made within the period prescribed after all of them had ceased to be under disability. If the legislature intended to give a similar extension to the scope of Section 8, the expression when one of several joint-creditors or claimants is under any such disability' may naturally be expected to have been altered into 'when 'one of several joint-creditors or claimants or one of several persons jointly entitled to make an application is under any such, disability.' The absence of such or similar alteration clearly shows that execution creditors and. persons entitled to make applications during the course of a suit were not brought within the purview of Section 8. The reason seems to mo to be obvious. Whether or not one of several joint creditors or claimants can, according to the general law or the personal law governing them, give a discharge binding upon the others--which is the criterion on which Section 8 proceeds--can well apply to claims or obligations for the enforcement of which suits have to be brought ; but in the case of applications which are governed by processual law, such a criterion is inapplicable inasmuch as one of several persons entitled, jointly to make an application, can without the concurrence of the others, give no valid discharge binding upon all in respect of the matter of the application.
18. The word 'creditor' in its general sense denotes a person 'who has a right bylaw to demand and recover of another a sum of money on any account whatever' (Anderson's 'Dictionary of Law at p. 291), and standing by itself I doubt if it includes a 'judgment creditor' or an 'execution creditor the former denoting ' one whose claim has been merged, into a judgment against his debtor and under which generally execution may be had and. the latter, a creditor who has obtained a levy upon property belonging to his debtor.'
19. Section 8 being for the above reasons inapplicable to an application for execution presented by decree-holders, the only question which has now to be considered is, whether with reference to Section 7 of the Limitation Act, the application is or is not barred under Article 179.
20. The first question which presents itself upon the facts of this application is the determination of the date referred to respectively in the various clauses in column 3 opposite article 179 of the 2nd schedule from which date the period of limitation is to be reckoned. The dates referred, to in Clauses 2, 3, 5 and 6 are upon the facts already stated inapplicable to the present case, if it were optional with the decree-holders to elect the date referred to in clause, i.e., the date of the decree (80th June 1892) when they were all minors, in preference to the date referred to in Clause 4, i.e.) the date, of the last preceding application (8th January 1896) when only one of them was a minor, the matter is simple enough and, according to the derisions of all the High Courts, the present application which was made within 3 years after the youngest brother attained the age of majority, will not be barred by the law of limitation. The different dates, subsequent to the date of the decree referred to in the various clauses of Article 179, as the starting point from which the period of limitation is to be reckoned being evidently intended for the benefit of the execution-creditors, I was at first inclined to the opinion that they might forego the privilege and elect the date of the decree itself, if by reason of Section 7 it were in the particular case more beneficial to them to reckon the period of limitation from the date of the decree sought to be executed instead of from a later date i.e., the date of the last preceding application. Such view certainly would remove the anomaly of placing a decree-holder in a worse position by reason of an application for execution having once been made on his behalf or by a joint decree-holder than if no such application has ever been made. But such view will, I find produce even greater anomalies in other cases. If the decree-holder or decree-holders were to have the option of choosing any of the dates referred to in the various clauses, he or they might choose the date of the original decree, when he or they were all under disability, in preference to the date of the final decree of the appellate Court (confirming the original decree when he or one of some of them may have ceased to be under disability. The contingency that the reckoning of the period of limitation from an earlier date may, in some cases, be more favorable to execution creditors than from a later date, was most probably not in the contemplation of the legislature when Article 179 was enacted and after a full consideration of this question, which was not fully argued, and having regard to the relative anomalies which inevitably present themselves in either view, I have come to the conclusion that for the purposes of Section 7, the time from which, the period of limitation is to be reckoned, should be the latest (applicable to the case) of the various dates referred to in the clauses of Article 179. The execution creditor or creditors can claim the benefit of Section 7 only if he or they, as the case may be, were all under disability at that date. In the present case, therefore, the starting point for reckoning the period of limitation should be taken to be the date of the last, preceding application, i.e., 8th January 1896, assuming, of course, that that application had been, made in accordance with law.
21. As already stated, only one of the three joint decree-holders was then under disability. Viewing the question from this standpoint, there is a direct conflict between the decisions of this Court and those of the High Courts of Calcutta, Bombay and Allahabad. In the latest case on the point Surjikanwar Dutt v. Arunchandra Roy I.L.R. 28 C. 465 the Chief Justice of the Calcutta High Court and Banerji, J., in dissenting from the decisions of this Court in I.L.R.13 M. 236 and Narayanan Nambudri v. Damodaran Nambudri I.L.R. 17 M. 189--in all of which it was held, following the construction placed by Lord Kenyon in Perry v. Jackson 4 T.R. 519 on the proviso to the statute of James I, and Section 4 of 3 and 4 William IV. Clause 42, that Section 7 of the Indian Limitation Act applies only to cases in which either there is one decree-holder and he is a minor, or in which all the joint decree-holders are minors or labour under some other disability--distinguish the said English statutes from section 7 of the Indian Limitation Act, by pointing out that in the former the expression is of any person or persons &c.;,' whereas in the latter, the expression is 'If a person entitled to institute a suit or make any application be, &c.;' With all respect to the learned judges who took part in the above decision, I must say, the phrase ' if a person' in the Indian Act is, by virtue of the General Clauses Act, the same as the expression 'if any person or persons,' occurring in the English statute.
22. This decision of the Calcutta High Court as well as a former decision of the same Court in I.L.R. 14 C. 50 and the decisions of the Bombay and. Allahabad High Courts in I.L.R. 20 B 383 and I.L.R. 22 A. 199 all relate to joint decree-holders, one of some of whom alone were labouring under the disability of minority at the time from which the period of limitation had to be reckoned. It was held in all these cases, that Section 8 was inapplicable to the case, but that under Section 7 the application made by a minor decree-holder, within three years, after he attained majority, for execution of the whole decree under Section 231, C.P.C., was not barred by the law of limitation, though move than three years had elapsed since the date of the last preceding application, inasmuch as the applicant was labouring under a disability at the date of (the last preceding application. The ratio decidendi of these decisions seems to be that by virtue of Section 231, C.P.C, each One of several pint decree-holders is competent to make an application for the execution of the whole decree, that therefore even if one of them alone was a minor at the date of the decree or of the last preceding application as the case may be, he is a person entitled to make an application for the execution of the whole decree, and having been, at the time from which the period of limitation is to be reckoned, a minor, he could have the benefit of Section 7, if he applies for execution of the whole decree, within three years after he attains the age of majority, though the other decree-holders would, at that time, be barred by limitation from applying for execution of the decree. With all deference I find it impossible to adopt this conclusion or the reasoning on which it is based. Section 231, C.P.C. is only a rule of procedure which enables one of several joint decree-holders to make an application for the execution of the decree on behalf of and for the benefit of all the joint decree-holders, and if the Court sees sufficient cause for allowing the decree to he executed on an application, so made, it should pass the necessary orders for protecting the interests of the other persons who have not joined in the application. In my opinion 'a person entitled to institute a suit or make mi application' within the meaning of Section 7, is one, who in his own right, is thus entitled, and not a person who under a statutory provision is authorised with the permission of the Court to institute a suit on behalf of himself and others having an interest in the suit (Section 30, C.P.C.) or make an application for execution for the benefit of himself and others interested jointly with him in the decree to be executed, subject to the permission of the Court to allow him thus to execute the decree (Section 231, C.P.C). The logical result, of the reasoning on which the above decisions seem to be based would, practically be that if two or more persons are jointly entitled to institute a suit and one of them alone was under disability when the right to sue accrued, he could, institute the suit within three years after he attained majority by joining the others as co-defendants, though they would be barred by limitation if they had then instituted the suit. In the sense in which one only of several joint decree-holders is entitled to apply for execution of a decree on behalf of all, one only of several joint promisees or creditors is entitled to institute a suit joining the others as co-defendants along with the debtor. But, for purposes of limitation, neither the application nor the suit would be within time unless the application if jointly made or the suit if jointly instituted by all, would be within time.
23. No doubt as observed, in I.L.R. 14 C. 50 the bar of 'limitation to the execution of a decree bars only the remedy; the right is not extinguished. But if, as therein assumed, the remedy of certain decree-holders be barred, it is difficult to see on what principle they can recover their portion of the decree amount from the decree-holder who executes the whole decree and whose remedy so to execute the decree is assumed not to be barred by the law of limitation. Under Section 231, C.P.C., it is obligatory on the Court, if it sees sufficient cause to permit the execution of the whole decree on application made by one of the joint decree holders, to pass such, orders as may seem necessary to protect the interests of the remaining joint decree holders. If their remedy to realise their interests under the decree has already been barred, no orders could be passed for protecting the same. Suppose the joint. decree-holder who, it is assumed, could make an application for the execution of the whole decree, though it is assumed that the remaining decree-holders are barred from making such application, does not choose to apply for the execution of the decree, or chooses to apply only for a partial execution of the decree, or receive payment out of Court, hare the remaining joint decree holders any remedy against him Section 231, C.P.C., proceeds on the footing that the joint decree which is sought to be executed, by any one or some of the joint decree-holders and not by all. is not barred by limitation either in whole or in part, and that therefore the Court may, if it sees sufficient cities, allow the whole decree to be executed for the benefit of all on application made by only one or some of them, due provision being made to protecting the interests of the others.
24. Explanation 1 to Article 179 makes it clear that where a decree has been passed jointly in favour of more persons than one and not severally, distinguishing portions of the subject-matter payable or deliverable to each, the decree cannot be barred in part, as against some, but must be barred in whole, against all, or not at all against any. Both Sections 7 and 8 of the Limitation Act proceed on the same principle. For purpose of giving a fresh starting point for reckoning the period of limitation under article 179, an application for execution made by any one of several joint decree-holders will, under explanation 1, enure to the benefit of them all.
25. A joint decree may, no doubt, sometimes become divisible and executable in part to the extent of such severance, when by operation of law, or by act of parties, the judgment-debtor has acquired the interest of one or some of the joint decree-holders in the decree and thus a partial satisfaction or extinguishment of the decree fakes place Banarsi Dass v. Maharani Kuar I.L.R. 5 A. 27 Kudhai v. Shea Dayal I.L.R. 10 A. 570. But as no such contingency is alleged to have happened in the present case, I do not consider the decisions which were cited by the learned pleader for the respondent Kally Soondery Davia v. Hurrish Chunder Chowdhri I.L.R. 6 C. 594 Hurrish Chunder Chowdhri v. Kally Soonderi Davia I.L.R. 9 C. 482 Tarruck Chunder Bhattachdrjee v. Devandronath Sanyal I.L.R. 9 C. 831 Sultan Moideen v. Savalay Ammal I.L.R. 15 M. 343 Muthusami Aiyar v. Natesa Aiyar I.L.R. 18 M. 464 in support of liis alternative contention that the decree can be executed, if a all only to the extent of the youngest brother's interest in the decree-debt, i.e., an one-third share to which he would be entitled in a partition between himself and his elder brothers.
26. Assuming that the facts bearing upon the question referred to the Full Bench are as set forth at the beginning of this judgment and. that the last preceding application for execution was made in accordance with, law, my answer is that the present application for the execution of the decree, whether that be regarded as one made by all the three brothers as joint decree-holders or under Section 231, C.P.C. by the youngest brother alone for the benefit of all or as one made by him for the recovery of his alleged one-third share therein, is barred by the law of limitation, but that if the last preceding application was not made in accordance with law and the starting point for reckoning the period of limitation is therefore the date of the decree, the present application, whether it be one made by all the three brothers or under Section 231, C.P.C., by the youngest of them alone, is not barred by limitation either in whole or in part.