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Gobinda Lal Ghose Vs. Nalini Kanta Ghose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1925Cal584,(1925)ILR52Cal63
AppellantGobinda Lal Ghose
RespondentNalini Kanta Ghose
Excerpt:
minor - decree-holder--guardian--judgment-debtor--execution of decree--fraud--time, suspension of--limitation act (ix of 1908) section 9. - .....of the district judge, dated the 17th of july 1923. on the 1st of august 1914 the father of a minor obtained a decree against the present appellant. the father subsequently died and on the 10th of september 1915 the present appellant who was a debtor to the estate of the minor got himself appointed as guardian of the minor's property. therefore the present appellant was the person who, as guardian of the minor, was under the obligation of enforcing against himself the decree which had been obtained against him by the minor's father on the 1st august 1914. i cannot think that this fact was disclosed to the district judge at the time he made the order appointing the appellant as guardian of the minor. there is, it is true, no finding on this point, but the guardian who is seeking to.....
Judgment:

Greaves and Graham, JJ.

1. This is an appeal by the judgment-debtor against an order of the District Judge, dated the 17th of July 1923. On the 1st of August 1914 the father of a minor obtained a decree against the present appellant. The father subsequently died and on the 10th of September 1915 the present appellant who was a debtor to the estate of the minor got himself appointed as guardian of the minor's property. Therefore the present appellant was the person who, as guardian of the minor, was under the obligation of enforcing against himself the decree which had been obtained against him by the minor's father on the 1st August 1914. I cannot think that this fact was disclosed to the District Judge at the time he made the order appointing the appellant as guardian of the minor. There is, it is true, no finding on this point, but the guardian who is seeking to prevent the enforcement of the decree against himself on the ground that limitation has run, ought to have satisfied the Courts that he made a full disclosure of his indebtedness to the estate to the District Judge and in my opinion the burden lies heavily on him to show that he made such disclosure. In default, we are bound to assume that no such disclosure was made and that the appellant perpetrated a fraud both on the Court and the minor by not making the disclosure. Matters continued in this state until the 18th of June 1921 when the mother of the minor got the present appellant discharged from his position of guardianship and got herself appointed as guardian of her minor son. After her appointment on the 31st August 1921 she applied for execution of the decree which her husband had. obtained, against the present appellant. The judgment-debtor took a point that the decree was no longer enforceable as more than three years had elapsed since it was passed, without any steps being taken to execute it, but the judgment-debtor clearly cannot rely on his own fraud and in our opinion the period, of: time between, the 10th of September 1915 and the 18th of June 1921 must be excluded from the calculation in computing the period of limitation. In this view the decree is not time-barred and we think that the Courts below were right in refusing to allow this claim of limitation, to be set up by a man who had acted in the fraudulent manner which, we have indicated.

2. The result is that the appeal fails and must be dismissed with, costs.


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