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Mannarswami Ayyar Vs. Ramaswami Nayakkan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad394
AppellantMannarswami Ayyar
RespondentRamaswami Nayakkan and ors.
Cases ReferredSeetharamaraju v. Subbaraju A.I.R.
Excerpt:
.....the debt, and therefore time was not running against them until the disability ceased, and that execution application was put in by the eldest brother within three years of the attainment by him of his majority. it would be a question of fact in the present case whether when the eldest son attained majority he was in a position to give a good and legal discharge of the decree without the concurrence of the other decree-holders, and if he could, with or without leave of the court to do so, it may be that time would begin to run but we do not decide this point here finally but leave it open to the lower court to give its own decision on this point. clearly if an application by the eldest brother on 14th july 1925 would not be saved by section 7, an application on that date by the next..........the debt, and therefore time was not running against them until the disability ceased, and that execution application was put in by the eldest brother within three years of the attainment by him of his majority. it was a clear case where section 7 applied. it is true that the learned chief justice goes on to say at p. 925:seeing that one of the decree-holders is still a minor, there is really no question of limitation arising in the case.3. since, however, the execution petition was put in within three years of the eldest son attaining majority that remark in so wide a form, is obiter and not necessary for the decision of the case. it would be a question of fact in the present case whether when the eldest son attained majority he was in a position to give a good and legal discharge of.....
Judgment:

1. This civil revision petition is presented against the order of the lower appellate Court allowing execution to proceed in the following circumstances: On 29th September 1919 a money decree was passed in favour of the -three minor brothers represented by their mother as next friend. On 11th April 1921 while they were still minors, the mother put in an execution petition which seems to have been infructuous. On 14th July 1925 she put in a fresh execution petition. By that time, two of the brothers had attained majority. The judgment-debtor contended that the execution petition was barred by limitation, and that, as two of the brothers had attained majority, the eldest could give for all the three a valid discharge of the decree, and that therefore the decree-holders could not avail themselves of the provisions of Section 7, Lim. Act. Both the lower Courts have held on the authority of Lakshmanan Chetty v. Subbiah Chetty : AIR1925Mad78 that the eldest brother could not so give a discharge and therefore Section 7 could be availed of and the decree could be executed. They did not go into the questions whether as a matter of fact the eldest son was the manager and as such could give a valid discharge on account of all, or as to whether a period of more than three years had elapsed between the date of attainment of majority by the eldest son and 14th July 1925. They decided the case on the pure question of law laid down in Lakshmanan Chetty v. Subbiah Chetty : AIR1925Mad78 .

2. Now it seems to us clear that they are mistaken as to the scope of that ruling, which is itself based on the Privy Council ruling in Ganesh Row v. Tuljaram Rao [1918] 36 Mad. 295. The former lays down that a guardian ad litem or next friend of a minor cannot give a valid discharge for a decree debt except with leave of the Court notwithstanding the fact that he was the manager of the joint family of which the minor was a member. The points to be noted in that case are that the father and the managing member died two months after the decree, which itself was passed in October 1913, that from the date of his death until the attainment of majority by the eldest son in December 1914 none of those who were jointly entitled to apply for the execution of the decree was in a position to give a good and legal discharge for the debt, and therefore time was not running against them until the disability ceased, and that execution application was put in by the eldest brother within three years of the attainment by him of his majority. It was a clear case where Section 7 applied. It is true that the learned Chief Justice goes on to say at p. 925:

seeing that one of the decree-holders is still a minor, there is really no question of limitation arising in the case.

3. Since, however, the execution petition was put in within three years of the eldest son attaining majority that remark in so wide a form, is obiter and not necessary for the decision of the case. It would be a question of fact in the present case whether when the eldest son attained majority he was in a position to give a good and legal discharge of the decree without the concurrence of the other decree-holders, and if he could, with or without leave of the Court to do so, it may be that time would begin to run but we do not decide this point here finally but leave it open to the lower Court to give its own decision on this point. It will therefore have to be decided in this case whether the eldest brother attained majority more than three years before 14th July 1925 and whether, if not he was such a person as could, with or without the leave of the Court give a valid discharge without the concurrence of the others, and the case will have to be decided in accordance with that principle. Clearly if an application by the eldest brother on 14th July 1925 would not be saved by Section 7, an application on that date by the next friend could not be entertained.

4. Another point was raised by one of us during the argument, namely, whether, when an execution application is not put in by the minor himself on attaining majority but by his next friend while he still is a minor, Sections 6 and 7, Lim. Act would avail to sustain the operation of the Limitation Act in favour of the execution application put in by the next friend, and whether since the present application by the next friend was not put in within three years of the previous application, also by the next friend, it itself would not be barred without prejudice to the rights of the minor himself to start execution after he had himself attained majority. This point being taken up by the learned advocate for the petitioner, he argued that, while the minor has the option if such a phrase may be used of a minor in such circumstances either to apply by his next friend or to wait until he attains majority if he chooses the former course, the running of limitation is not suspended in favour of his next friend, although he may later on when he attains majority start execution petitions on his own account.

5. Reported rulings on this point there are surprisingly few, but we think the point is concluded on the principle laid down by the Privy Council in Phoolbas Koonwar v. Lalla Jogeshur Sahay [1875] 1 Cal. 226, under the old Lim. Act of 1859. The question there was whether the guardian of an infant could, after one year from an order on a claim petition, bring a suit to set aside the order. Their Lordships held that he could and that the opposite contention was unreasonable in itself, since it implies that the infant's claim, which is admittedly not barred, was asserted too soon rather than too late, and it cannot be the policy of the law to postpone the trial of claims. This ruling which has been followed in Mon Mohun Buksee v. Gunga Soondary Debee [1883] 9 Cal. 181 implies that Sections 6 and 7, Lim. Act import that during minority the operation of the Limitation Act is suspended. Since then the minor can apply within three years after attaining majority, he by his guardian or next friend can apply at any time before he attains majority. The present application will therefore be in time from this point of view because the articles of the limitation Act do not apply to it.

6. It was argued for the petitioner, founding on the ruling in Ramana v. Babu [1914] 37 Mad. 186, that minors are not exempt from the operation of Section 48, Civil P.C. with its twelve years limitation period within which a decree must be executed, and that this implies that the runnig of time is not suspended against a minor. We do not think this inference is sound. Section 48 is not a rule of limitation and will not in this respect override Section 7, Lim Act, which definitely says that time will not run. The application of Section 7 of course is to the periods of time set out in the Limitation Act itself, and it is such a period, namely that in Article 182, with which we are here concerned. To the decision of a question under Section 48, Civil P.C., the fact of minority is wholly irrelevant. The ruling in Seetharamaraju v. Subbaraju A.I.R. 1922 Mad. 368 has been referred to but this really does not cover an application under Section 7. We would therefore reverse the order of the lower appellate Court and direct it to re-hear the petition in the light of the above remarks. Costs will abide the result. Fresh evidence may be taken if necessary.


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