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Viriyala Jagannatha Rao Vs. Viriyala Narayanamurthy, Minor, by Mother and Next Friend Ranganayakamma - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtChennai
Decided On
Reported inAIR1933Mad696; 145Ind.Cas.714; (1933)65MLJ374
AppellantViriyala Jagannatha Rao
RespondentViriyala Narayanamurthy, Minor, by Mother and Next Friend Ranganayakamma
Cases ReferredSamia Pillai v. Chockalinga Chettiari I.L.R.
Excerpt:
- - on that point it is perfectly clear that the petitioner decree-holder was perfectly bona fide as it is impossible to assume that any one would be so foolish as to file a petition against a minor knowing that the guardian on the record was dead but still adding his name as such......to have died before the date of the application, is or is not sufficient to furnish a fresh starting point for limitation for a further application. the question has been directly decided in the lahore and patna high courts in ghulam hussain v. narain singh a.i.r. 1931 lah. 636 and puran mall v. mt. dilwa (1922) 72 i.c. 1003 respectively in the affirmative. i am content to say that i agree with the view of those high courts and adopt it. there is also a decision of our court in samia pillai v. chockalinga chettiari i.l.r.(1893) 17 mad. 76 : (1893) 4 m.l.j. 8 which shows that this view is right. in that case it was held that an application for execution against a judgment-debtor who happened to have died before the date of the application bona fide made in the belief that he was.....
Judgment:

Krishnan Pandalai, J.

1. The sole point in this appeal is one on which it appears there is no direct decision of this Court, and it is, whether an application for execution against a minor judgment-debtor mentioning therein as his guardian the person who had been appointed and was acting as guardian but who happened to have died before the date of the application, is or is not sufficient to furnish a fresh starting point for limitation for a further application. The question has been directly decided in the Lahore and Patna High Courts in Ghulam Hussain v. Narain Singh A.I.R. 1931 Lah. 636 and Puran Mall v. Mt. Dilwa (1922) 72 I.C. 1003 respectively in the affirmative. I am content to say that I agree with the view of those High Courts and adopt it. There is also a decision of our Court in Samia Pillai v. Chockalinga Chettiari I.L.R.(1893) 17 Mad. 76 : (1893) 4 M.L.J. 8 which shows that this view is right. In that case it was held that an application for execution against a judgment-debtor who happened to have died before the date of the application bona fide made in the belief that he was still alive, was a step-in-aid of execution; in other words, will furnish a starting point for limitation for a further application. If that is the case in. respect of the judgment-debtor himself, much more so is it in a case where it is not the judgment-debtor that is dead but his guardian in respect of whom there is no such procedure known to law as adding a legal representative. What is required to be done is, when the applicant comes to know of it, that he should take steps to furnish the minor judgment-debtor with a fresh guardian. But the appellant's learned advocate relied upon Order 32, Rule 5(2), Civil Procedure Code, and urged that a petition against a minor without a proper guardian, which means a living guardian, is not one made in accordance with law. He is here confusing two matters. It is the case that an order passed against a minor without a guardian properly appointed can be discharged under that Rule, but the point here is whether the petition is sufficient for the purpose of limitation to afford a fresh starting point, and on that point Order 32, Rule 5 is of no assistance whatever.

2. The learned advocate raised another point, that it had not been established that the petitioner acted bona fide in riling the particular petition in this case, namely, the fourth execution petition, mentioning a dead man as the guardian. On that point it is perfectly clear that the petitioner decree-holder was perfectly bona fide as it is impossible to assume that any one would be so foolish as to file a petition against a minor knowing that the guardian on the record was dead but still adding his name as such.

3. The appeal fails and is dismissed with costs.


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