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Mon Mohun Buksee Vs. Gunga Soondery Dabee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal181
AppellantMon Mohun Buksee
RespondentGunga Soondery Dabee
Cases ReferredMussumat Phoolbas Koonwur v. Lalla Jogeshur Sahoy L.R.
Excerpt:
execution of decree - minor plaintiff--application for execution by guardian--limitation act (xv of 1877), section 7. - .....india (act xv of 1877), yet by that act the execution is not barred, for the plaintiff (the decree-holder) is a minor, and as such under disability, and therefore time does not run against him during his minority. it is not disputed that the decree-holder is a minor; and accordingly, under section 7 of the act, until his minority has ceased, he is not affected by the law of limitation. it is contended, however, for the respondent that, upon the true construction of section 7, the minor must wait until he attains majority before suing out execution, and that, until then, he cannot, through his guardian, take any steps to enforce his decree. this contention is unsound, and is disposed of by the judgment of the privy council upon the corresponding section of the old limitation act,.....
Judgment:

White, J.

1. The Court below held that the execution was not barred by the law of Cooch-Behar, but that it was so by the law of British India, that being the law of the Court in which the judgment was sought to be enforced, and the law defining the limitation for suits being part of the lex fori.

2. On appeal before us it is argued, that, assuming the question to be determinable by the Limitation Act now in force in British India (Act XV of 1877), yet by that Act the execution is not barred, for the plaintiff (the decree-holder) is a minor, and as such under disability, and therefore time does not run against him during his minority. It is not disputed that the decree-holder is a minor; and accordingly, under Section 7 of the Act, until his minority has ceased, he is not affected by the law of limitation. It is contended, however, for the respondent that, upon the true construction of Section 7, the minor must wait until he attains majority before suing out execution, and that, until then, he cannot, through his guardian, take any steps to enforce his decree. This contention is unsound, and is disposed of by the judgment of the Privy Council upon the corresponding section of the old Limitation Act, XIV of 1859, in the case of Mussumat Phoolbas Koonwur v. Lalla Jogeshur Sahoy L.R. 3 I.A. 25-26. A plaintiff, who has obtained a decree during his minority, has the option either of applying through his guardian to execute the decree during his minority, or to wait until the expiration of his minority before enforcing his decree.

3. Another point was attempted to be argued, that, if the guardian of a minor commenced to execute the decree on his behalf during the minority, all subsequent applications by that guardian on the minor's behalf must be governed by the law of limitation. This argument also is unsound. It assumes, contrary to the law on the subject, that the application of the guardian is not the application of the infant, but something distinct. The minor is under a disability during the whole period of his minority. His disability does not cease, because he, through his guardian, makes two or more applications for execution, however long the interval between them, provided they are all made during the minority.

4. The order of the Judge is reversed, and that of the Munsif restored with costs in this Court and also in the lower Appellate Court.


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