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Duraisawmi Sastrial Vs. Venkatarama Iyer and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1911)21MLJ1088
AppellantDuraisawmi Sastrial
RespondentVenkatarama Iyer and anr.
Cases ReferredGanesha Rao v. Tuljaram Rao
Excerpt:
- .....the section, it cannot be denied, contemplates the existence of cases where one of several decree-holders can give a discharge without the concurrence of the others. it is contended on behalf of the judgment-debtor that it is only where a joint judgment-creditor has expressly authorised another as his agent to give a discharge that the other could give a discharge within the meaning of the section. the section itself does not lay down in what cases one decree-holder could give a discharge so as to bind other decree-holders. that must be decided by the substantive law governing the parties. according to hindu law there can be no doubt that the managing member of a hindu family can receive monies on behalf of the family from debtors and give a discharge so as to bind the whole.....
Judgment:

1. In this case a decree was passed in favour of two persons, members of a joint Hindu family, by the Subordinate Judge's Court of Kumbakonam in a small Cause suit. The first plaintiff in the suit was the managing member. Both the plaintiffs were minors at the time when the decree was passed. The present application for execution was put in by both of them. The first plaintiff had attained majority more than three years before the date when the application was put in. But the second plaintiff is alleged to have attained majority less than-three years before that date. The judgment-debtor contended that the execution of the decree was barred by limitation and the Subordinate Judge upheld his contention. A petition to revise the Subordinate Judge's order was filed in this Court and Abdur Rahim J. holding that the application was not barred by limitation reversed the order of the lower court. This appeal is against the order of the learned Judge. The question has to be decided under the provisions of Section 7 of the present Limitation Act (IX of 1908). The corresponding section in the repealed Act (XV of 1877) viz., Section 8, did not apply to applications for execution of decrees. That section has been altered in the present statute so as to make it applicable to such applications. Section 7 of the new Act provides : - 'Where one of several persons jointly entitled to make an application for the execution of a decree, is under any such disability, (i.e., minority etc.) and a discharge can be given without the concurrence of such person, time will run against them all, but where no discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.' The section, it cannot be denied, contemplates the existence of cases where one of several decree-holders can give a discharge without the concurrence of the others. It is contended on behalf of the judgment-debtor that it is only where a joint judgment-creditor has expressly authorised another as his agent to give a discharge that the other could give a discharge within the meaning of the section. The section itself does not lay down in what cases one decree-holder could give a discharge so as to bind other decree-holders. That must be decided by the substantive law governing the parties. According to Hindu Law there can be no doubt that the managing member of a Hindu family can receive monies on behalf of the family from debtors and give a discharge so as to bind the whole family. There is, in our opinion, no section in the Civil Procedure Code restricting the manager's power to receive monies on behalf of the family when a decree has been passed. It is admitted that monies realised in execution of decrees could be dealt with by the managing member after realisation in the same manner as he is entitled to deal with other monies. We can see no reason for holding that his powers with respect to the realisation of monies for which decrees have been passed should be more restricted than his powers with respect to collection of other monies. Order XXI, Rule 1, of the Code of Civil Procedure (1908) corresponding to Section 257 of the old Code provides, no doubt, that all monies payable under a decree may be paid inter alia to the decree-holder out of court and the expression 'decree-holder' would, no doubt, mean decree-holders where there are more persons than one, in favour of whom a decree has been passed. But the question is : - 'Is not payment to a decree-holder who is the managing member of a family and jointly entitled along with its junior members to the benefit of the decree, a payment to all the decree-holders, if the substantive law of the parties entitles him to receive monies on behalf of the Family?' There is no reason for holding that it is not. The position of a managing member is similar, for the purposes of the present question, to that of an agent. We mean that he has got at least all the powers of an agent for receiving monies due to the family, and this being so, there is no reason for holding that within the meaning of Order XXI, Rule 1, of the Code of Civil Procedure, 1908, monies due under a decree to a number of decree-holders constituting a Hindu family may not be paid to one amongst them who is the managing member. The managing member may sue singly in his capacity as manager and receive money due to the family-There is no reason why, simply because he has associated the junior members along with himself in instituting the suit, his power to release the money due to the family should be less than if he sues alone. The language of Section 257 of the old Code is only permissive and does not expressly prohibit payment to an agent or to one having the powers of an agent under the law of the parties. The respondent's vakil has referred to observations of Sir V. Bashyam Iyengar J. in the case Periasawmi v. Krishna Ayyar I.L.R. (1902) M. 431 which are also referred to in the judgment of Abdur Rahim J. If the learned Judge really meant to lay down that the provisions of Section 257 should be construed without reference to the substantive law of the parties in deciding whether one of them is entitled to receive monies for which a decree is passed in favour of a joint Hindu family, then, with all deference, we are unable to concur with him. Some decisions have been referred to which were passed while the repealed Limitation Act was in force. As pointed out already, Section 8 of that Act did not apply to applications for execution and the courts were therefore bound to hold that in such applications the rule now laid down in Section 7 of the new Act Could not be applied and the result was that if one alone of several decree-holders was a minor the benefit of Section 7 of the new Act could not be claimed by either of the decree-holders or by the judgment-debtor while at the same time the decree-holders were held by this Court not to be entitled to the protection afforded by Section 6 of the new Act to persons suffering from disability - see Seshan v. Rajagopala I.L.R. (1889) M. 236; Venkayya v. Lakshmayya I.L.R. (1892) M. 98. This unfortunate result has now been obviated by the amendment. We may observe that the judgment of Sir V. Bashyam Iyengar J. is expressly based on the fact that Section 8 of the old Limitation Act was not applicable to applications for execution. The legislature having subsequently amended it apparently with reference to the observations of the learned Judge, we think there ought to be no difficulty now in, applying the rules of Hindu Law in deciding the question whether the managing member can give a discharge so as to bind others or not. Having regard to the change in the language of the section of the Act, we consider it unnecessary to refer to some other cases that have been relied on for the respondents. We may observe that this Court has held more than once that money due to the members of a Hindu family under a decree may be directed to be paid to the managing member without taking any security notwithstanding the provisions of Section 231 of the old Civil Procedure Code; see A.A.O. No. 80 of 1910, Referred Case 3 of 1911 A.A.O. No. 155 of 1906 on the file of the High Court, and also Harihar Pershad Singh v. Mathura Lal I.L.R. (1908) C. 501. It is no doubt open to the court, where the manager is obliged to seek its help for realising A decree by process of execution, to direct security to be given for protecting the interests of other members when it sees reasons for doing so, but this cannot deprive him of the right to receive the money himself if he can do so without the assistance of the court. This Court has also held that the rights of a managing member under the substantive law would be recognised in matters relating to procedure, such as the right to compromise a suit without the consent of the court where minor members of the family are also parties to the litigation - see Ganesha Rao v. Tuljaram Rao (1908) 19 M.L.J. 4 confirmed in O.S.A. No. 47 of 1908. For these reasons we are of opinion that the judgment of the learned Judge must be reversed and that of the Subordinate Judge restored. The respondent will pay the appellant the costs of this Court both in this appeal and before Abdur Rahim J.


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