1. This appeal arises out of an application for execution of a decree obtained by the predecessor in title of the appellant against Rani Anandmayi Debi, widow of Raja Gajendra Narayan Roy.
2. The facts of the case which are necessary to be referred to for the purposes of this appeal, and which are not disputed, are shortly these: Raja Gajendra Narayan Roy borrowed a certain sum of money from the predecessor in title of the appellant, and before the debt was paid off, he died leaving him surviving his widow, Rani Anandmayi Debi, who was appointed executrix to his estate by his will, and was authorized to adopt a son. After the death of Raja Gajendra Narayan Roy, Rani Anandmayi obtained probate of the will and remained in possession of the estate, and whilst so continuing in possession of the estate, she borrowed a further sum of money from the appellant's predecessor in order to pay off certain Government revenue due from the estate of her deceased husband, and executed a bond for the consolidated sum of Rs. 32,000, being partly the amount of principal and interest ot' the loan contracted by her husband, and partly the amount borrowed by her. That bond is dated the 27th Bhadra 1284, and it mortgages a part of the estate left by Raja Gajendra Narayan Roy.
3. A suit was brought upon this bond on the 5th March 1880, and a decree obtained upon compromise on the 4th September of the same year, declaring that the properties hypothecated under the mortgage bond sued upon should remain so hypothecated, and directing that the amount decreed be recovered by the sale of the said property in the event of there being default of payment.
4. Between the date of the mortgage bond referred to above and that of the institution of this suit, Rani Anandmayi Debi adopted a son, the respondent in this case, but he was not made a party to the suit. After the decree, various proceedings were taken in execution against Rani Anandmayi Debi, in some of which partial satisfaction was obtained by payments being made by the minor.
5. Whilst these execution proceedings were pending, the estate left by the late Raja Gajendra Narayan Roy was, with the consent of Rani Anandmayi Debi, taken charge of by the Court of Wards. Whether the Court of Wards took charge of the estate as that of Rani Anandmayi Debi, or that of her minor son, the respondent before us, is one of the points that are disputed in this appeal. We shall deal with this question presently.
6. It further appears that in the course of these execution proceedings, and after the Court of Wards had taken charge of the estate, several applications were made either by the Collector on behalf of the minor, or by the manager under the Court of Wards on his behalf, asking for time, and some of these applications were accompanied by partial payments of the amount decreed, the execution, however, being still taken out against Rani Anandmayi Debi as (sic) the estate. But upon the application for execution made in (sic), the present appellant was substituted in the place of the decree (sic)his legal representative, and the present respondent was substituted as the judgment-debtor, after notice to him, and without any objection being raised on his behalf.
7. There was a subsequent application for execution, which proceeded up to a certain point, and was then struck off; and this execution also was taken out against the present respondent without objection.
8. The last application for execution and one that has given rise to this appeal was made in July 1893 by the present appellant, then represented by one Kripa Sindhu Pal, acting sub-manager under the Court of Wards, and it was made against the minor respondent Bhupendra Narain Roy, represented, by one Priya Nath Ganguli, manager, the estate left by Raja Gajendra Narayan being still under the Court of Wards. But subsequently the Court of Wards having released that estate, the minor came to be represented by Gour Mohun Roy, his natural father, who was appointed guardian ad litem by the Court.
9. Various objections were taken to the execution proceeding, of which it is necessary to notice only three, which are those dealt with in the judgment of the Court below, namely, first, that the applicant not having obtained a certificate to collect the debts due to the estate of the deceased decree-holder, the present application cannot proceed; second, that the decree being personally against Rani Anandmayi Debi, the adoptive mother of the minor debtor, it cannot be executed against the minor; and, third, that no valid application for execution of the decree having been made within twelve years of the decree or the dates of the instalments mentioned in the decree against the minor debtor, the decree is barred, and the present application is barred too.
10. The Court below overruled the first and the third objections, but disallowed the application for execution upon the second holding that the decree was a personal decree against Rani Anandmayi Debi, and cannot be executed against the minor.
11. Against that order the decree-holder has preferred this appeal. When the appeal was filed, he was still represented by his next friend Kripa Sindhu Pal, manager of his estate; but the Court of Wards having subsequently released the decree-holder's estate as well, the minor decree-holder has, by an order of this Court, been represented by his next friend Chowdhrani Tilotama Debi.
12. The contention on behalf of the appellant is that the Court below is wrong in holding that the decree now sought to be executed was made personally against Rani Anandmayi Debi, and that the decree is one that binds the estate of the minor, and it ought to have been allowed to be executed as prayed. On the other hand, the respondent seeks to support the judgment of the Court below, not only upon the ground on which it is based, but also upon two additional grounds, first, that the application for execution not having been made by the manager appointed by the Court of Wards was untenable, and has been rightly disallowed; and, second, that the Court below ought to have held that the application for execution was barred by the three years rule of limitation, and that the dismissal of the application is therefore right upon the ground of its being barred.
13. As the two last-mentioned objections are in the nature of objections in bar, we propose to consider them before dealing with the other objection, namely, that upon which the judgment of the Court below is based.
14. In support of the first-mentioned cross-objection, namely, that the application is untenable by reason of its having been made, not by the manager under the Court of Wards, but by the sub-manager, the learned Counsel for the respondent relies upon the case of Bhoopendro Narain Dutt v. Baroda Prosad Roy Chowdhry I.L.R. 18 Cal. 500. That case is, however, distinguishable from the present one for two reasons. In the first place the objection here was not taken in the Court below. We observe that if it had been taken there it could have been met and answered. In the case cited the objection was taken in the Court of First Instance, and that circumstance is specially relied upon in the contention before this Court, as the report shows. The case cited is also distinguishable from the present for another and a very important reason, which is this that, whereas in the case cited, the minor appellant was, at the date of the hearing of the appeal, still under the jurisdiction of the Court of Wards, the minor in the present case is no longer under that jurisdiction, and is now represented by his next friend appointed by the Court. We consider this distinction a material one, because in the case cited, if this Court had proceeded to dispose of the appeal without determining the question as to whether the minor was or was not properly represented by the person who professed to act for him, the decision of this Court would have been open to question in any future proceeding on account of its having been passed in the presence of a person who had no authority to represent the minor. No such apprehension can possibly arise in the present case, as the minor is now represented by a duly authorized person, and the decision of this Court, whatever it may be, can by no means be called in question upon the ground of the minor not having been properly represented before this Court. For these reasons, we think it would not be right to allow an objection which is purely of a technical character to be entertained at. this stage of the case.
15. We should add here that the learned Counsel for the appellant tendered in evidence a document purporting to be an authenticated copy of an order of the Commissioner of the Division, authorizing Kripa Sindhu Pal to act on behalf of the minor decree-holder. The reception of this document was objected to on the other side; but we do not think it necessary to dispose of this objection and to admit this additional evidence, as the only point which it is intended to meet is one which for the reasons already given we consider it not right to entertain.
16. As to the second ground upon which the, respondent seeks to support the order of the Court below, namely, that the application for execution is barred by limitation, this is how the contention is raised. It is argued that as the application of August 1888 was made more than three years after the date of the last preceding application which was made in April 1885, the application of August 1888 and all subsequent applications must be held to be barred by the three years rule of limitation. To this objection there are several answers. In the first place, though the application of August 1888 was made more than three years after the date of the next preceding application, it was made within three years from the 13th March 1886, on which date a petition was put in Court signed by the vakil of the minor respondent admitting liability for the judgment-debt and making payment of Rs. 1,000 on account of that debt, and the acknowledgment of liability contained in this petition is, in our opinion, sufficient to save the case from being barred by limitation. In support of this view we may refer to the case of Toree Mahomed v. Mahomed Mabood Bux I.L.R. 9 Cal. 730.
17. Then, again, the application of August 1888 is within three years from September 1885 when talabana or process fee was paid by the decree-holder for service of the sale proclamation. This, in our opinion, was an application to the Court to take some step in aid of execution within the meaning of Clause 4 of Article 179 of the second schedule of the Limitation Act. This view is fully supported by the decision of a Full Bench of this Court in the case of Ambica Pershad Singh v. Surdhari Lal I.L.R. 10 Cal. 851.
18. Lastly, we would observe, that whether rightly or wrongly the application of August 1888 having been admitted and registered and attachment having , been ordered to issue, and a subsequent application for execution of 1891 having also been granted after notice to the judgment-debtor, it is no longer open to the other side to question the validity of these proceedings on the ground of the execution being barred by limitation; and in support of this view we may refer to the case of Mungul Pershad Dichit v. Grija Kant Lahiri I.L.R. 8 Cal. 51 : L.R. 8 I.A. 123.
19. For all these reasons we are of opinion that the application of August 1888 was not barred by limitation; and if that was so, it becomes unnecessary to consider whether any subsequent application is barred, as the right to apply for execution since the date of the application of August 1888 vested in a party who was a minor at the time and who is still a minor. Limitation is saved by the operation of Section 7 of the Limitation Act, the person entitled to make the application being at the time from which limitation is to be reckoned, that is to say, on the 21st of August 1888, a minor; and this view is fully supported by the decision of this Court in Lolit Mohun Misser v. Janoky Nath Roy I.L.R. 20 Cal. 714. Nor can it be said that the privilege given to a minor can be availed of only after he comes of age. Any application made on his behalf by his guardian must be equally exempt from the operation of limitation. [See the case of Phoolbas Koonwur v. Lolla Jogeshur Sahoy I.L.R. 1 Cal. 226]. The application therefore is, in our opinion, not barred by limitation.
20. We come now to the consideration of the ground upon which the decision of the Court below rests, namely, that the decree being a personal decree against Rani Anandmayi Debi cannot bind the estate of the minor. Now, whether we look to the nature of the original loan, part of which was contracted by the minor's adoptive father, and part by the minor's adoptive mother, before he was adopted, acting as executrix, and for the purpose of paying Government revenue, or to the terms of the mortgage bond which clearly hypothecated the estate of Raja Gajendra Narayan Roy, or to the decree which expressly directs that the amount decreed is to be realized by the sale of the hypothecated property, there can be no doubt that the decree is not a mere personal decree against Rani Anandmayi Debi. Having regard to the facts stated above, we think it clear upon the authorities, of which it is necessary only to cite Ishan Chunder Milter v. Buksh Ali Soudagur Marsh. 614, General Manager of Raj Durbhunga v. Ramput Singh 14 Moo. I.A. 605, Bissessur Lull Sahoo v. Luchmessur Singh L.R. 6 I.A. 233 : 5 C.L.R. 477, and Hari Saran Moitra v. Bhubaneswari Debi I.L.R. 16 Cal. 40 : L.R. 15 I.A. 195, that the decree must bind the estate left by the late Raja Gajendra Narayan Roy, in which the minor is beneficially interested as his adopted son.
21. Nor was it very strenuously contended that the liability created by the decree may not be enforced against the estate of the minor. The gist of the contention on behalf of the respondent was that, though that liability might be made to attach to the estate of the minor, it could be enforced against his estate only by a separate suit, and that it was not competent to the decree-holder to have such liability enforced against the estate of the minor by proceedings taken in execution of the decree; and it was broadly contended that the order of the Court substituting the minor respondent as judgment-debtor must be treated altogether as a nullity and of no effect whatsoever; and as a corollary to this proposition, it was further contended that as the minor was not a party to the suit, nor the representative in interest of the judgment-debtor in the suit, no appeal lay against the order of the Court below under Section 244 of the Code of Civil Procedure. In support of this contention the case of Dhuronidhur Sen v. Agra Bank I.L.R. 4 Cal. 380; in review, I.L.R. 5 Cal. 86 was relied upon. That case is, however in our opinion quite distinguishable from the present. Referring to the final judgment in review reported in I.L.R. 5 Cal. 95, we find that the main ground upon which this Court's view, that the order for substitution was altogether a wrong order, is based, is that the party substituted as judgment-debtor was not in any way liable to the decree-holder for the amount of the decree. If the same thing could be set up here, no doubt it would follow that the order for substitution would be equally bad; but no such thing was suggested in the faintest way in the somewhat lengthy and elaborate argument of Mr. Pugh and of Babu Bhoivani Charan Dutt who followed him. It was neither argued nor suggested that the loans had been contracted for improper purposes, or that the decree had been improperly obtained, or that any of the several petitions put in on behalf of the minor respondent in the course of the execution proceedings had been put in improperly or without due regard for the interests of the minor by the Collector or manager who represented the minor for the time being. That being so, we do not think that the case cited has any application to the present one.
22. It was then contended that the Code of Civil Procedure contains no provision for substitution of the kind that has been made here; and the order for substitution of the minor respondent has been subjected to very severe criticism. That order is order No. 2 in the order sheet of execution case No. 137 of 1888, dated the 18th September 1888, and is printed at page 73 of the paper book. There is a slight mistranslation which being corrected, the order runs thus : Notice has been served on the heir of the debtor and no objection has been raised. It is ordered that, in place of the name of the deceased debtor Gajendra Narayan Roy, the name of his minor son and heir be substituted; that the decree-holder do take steps for attachment within one week's time; and that the case be laid before the Court on the 25th September next. 'It is argued, and no doubt rightly argued, that as Gajendra Narayan Roy was not the judgment-debtor his heir could not be substituted in his place. The judgment-debtor on the record was Rani Anandmayi Debi, and she was still alive; and so it is further contended that no case for substitution of names had arisen. The order may be faulty in respect of language; but looking to the substance of the thing, we do not think the substitution of the minor is open to any serious objection. This is how the matter really stood at the date on which the order was made. The decree was against Rani Anandmayi Debi who represented the estate as executrix of the will of the late Raja Gajendra Narayan Roy. Subsequent to the date of the decree, the estate was made over to the Court of Wards, and it was taken charge of by the Court of Wards, not as the estate of Rani Anandmayi Debi, but as that of the minor, as there is ample material on the record to show. What leads us to say so is a petition filed on behalf of the minor by his present guardian on the 7th April 1894, in the course of the present execution proceedings. In that petition, in paragraph 7, it is stated that the Court of Wards gave up the estate of the minor debtor on the 20th March last. That goes to show that the estate must have been taken charge of as that of the minor debtor. And so it really must have been, for the will of the Raja Gajendra Narayan Roy, of which a translation has been put in by consent of parties, goes to show that there is no testamentary disposition of the estate; that Rani Anandmayi is merely appointed executrix, and that in due course, on the adoption of the minor, the beneficial interests in the estate became vested in him. All that remained in Rani Anandmayi was the right to manage as executrix, and upon her surrendering the right to manage to the Court of Wards who took charge of the estate, the estate became completely vested in the minor. That being so, upon the Court of Wards taking charge of the estate, there arose a change in the circumstances of the case, which very properly required the substitution of the minor in the place of Rani Anandmayi Debi. Then arises the question whether such substitution is authorized by the Code of Civil Procedure. A substitution of this sort is nowhere provided for by the Code, but the mere absence of provision for such a case would be no sufficient ground for holding that such substitution could not be made. We may refer to Section 372 of the Code of Civil Procedure as containing some provision which might be applied to execution proceedings; but even if that; section be held to be inapplicable, still we must hold that the Court has power to make a substitution of the kind that has been made. That such a thing must be taken to be authorized by law appears from the case of Hari Saran Moitra v. Bhubanesirari Debi I.L.R. 16 Cal. 40 : L.R. 15 I.A. 195, in which their Lordships of the Privy Council held that a decree obtained against the adoptive mother, notwithstanding the adoption of a son by her before the date of the decree, could be rightly executed against the adopted son. If that could be so, there is no real difference in principle between that case and this; and there is no reason why the decree in this case should be held incapable of execution against the respondent; of course, only to the extent of the estate which is made liable by the decree.
23. We are, therefore, of opinion that the minor respondent had been rightly substituted as judgment-debtor by the order of the 18th September 1888.
24. But even if that order had been wrong, is it open to the respondent to question it now at this stage of the case? We are clearly of opinion that the question must be answered in the negative. He allowed the order to be made after notice to him. Indeed, long before that order was made, he had intervened from time to time in the course of the execution proceedings, asked for time, and made partial payments in satisfaction of the decree; and subsequent to the order for substitution, and after the proceeding in which it was made had been struck off, and upon a fresh proceeding being taken and notice served on him, he refrained from taking any objection to the order; nay, more; after the present application had been made, the minor, by an application made on his behalf by the manager under the Court of Wards, Priya Nath Ganguli, on the 15th March 1894, made part-payment of the money due under the decree, and asked for and obtained a stay of sale; and it would be contrary to all principles of justice, equity and good conscience to allow him now to raise the objection that he has not been placed properly upon the record, that he is no party to the decree and to the execution proceedings, and that all the proceedings that have been taken must be treated as nullities. That he is bound by these proceedings and is precluded from questioning the correctness of the order for substitution is abundantly clear upon the authorities, of which we cite only two, namely, the case of Mungul Pershad Dichit v. Grija Kant Lahiri I.L.R. 8 Cal. 51 : L.R. 8 I.A. 123 and that of Ram Kirpal v. Rup Kuari I.L.R. 6 All. 269 : L.R. 11 I.A. 37. The order must be taken to have become final and binding upon the parties upon general principles of law; for if it were not binding, then to use the words of their Lordships of the Judicial Committee, there would be no end to litigation. There may have been some irregularity in the execution proceedings, and some of the orders may be defective in point of language; but it has been the settled policy of our law not to allow bond fide, execution proceedings to be called in question merely upon technical objections as to form.
25. On all these grounds we are of opinion that the order of the Court below disallowing execution is wrong, and must be set aside, and the case must be sent back to that Court in order that execution may proceed. The appellant is entitled to his costs.