ABED HOSSAIN MIA Vs. ABDUR RAHAMAN SAHA CHOUDHURY

JUDGEMENT

(1.) This is a decree-holders appeal in an execution case. They are five in number, one of whom Abdul Rauf Choudhury is a minor and is represented by a co-decree-holder who is a certificated guardian. The appellants obtained a decree against the respondents on 21 June 1928. The execution proceedings out of which this appeal arises were started by them admittedly after three years had expired from the date of the decree. The judgment-debtors objected to the execution on the ground that it was barred by limitation. The executing Court accepted the objection of the judgment-debtors and ordered the execution case to be dismissed. On appeal by the judgment-debtors to the lower appellate Court the learned Judge has affirmed that order. Hence the present appeal by the decree-holders. The contention of the learned advocate for the appellants is that the Courts belows are wrong in holding that the execution is barred by limitation. It is argued that one of the decree-holders is still a minor and consequently under the second part of Section 7, Lim. Act, the execution is not barred. Now Section 7, Lim. Act, is in these terms: Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any or them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.

(2.) Section 6, Lim. Act, contemplates cases where there is only one minor decree-holder or where all the decree-holders are minors. The second part of Section 7 extends the period of limitation to some cases where there is a joint decree in favour of persons some of whom are minors; prima facie therefore under the second part of Section 7 the application for execution is not barred by limitation. It is however contended by the learned advocate for the judgment- debtors that the provisions of the second part of Section 7 are not attracted to the facts of the present case. He puts forward two grounds: (1) that the decree is not at all a joint decree, and (2) that the certificated guardian of the minor decree-holder had the legal capacity to give a discharge without the concurrence of the minor. As regards the first ground it appears from the decree itself that it does not specify the shares of the different decree-holders. The learned advocate for the judgment-debtors however contends that as the decree-holders obtained the decree as heirs of a certain Mahomedan lady, they are tenants-in-common and consequently the decree cannot be a joint decree.

(3.) The obvious answer to this contention is that the materials on the record of the present case do not support such an argument. In support of the second ground it is argued by the learned advocate for the respondents that under the powers conferred on the certificated guardian by the Guardians and Wards Act he had power to collect the moneys of the minor and consequently he had the legal capacity to give a discharge for the decretal debt without the concurrence of the minor. I am unable to accept the contention. Whatever may be the powers of the certificated guardian to collect other moneys of the minor his powers to receive money payable to a minor under a decree is subject to the permission of the Court, see Order 32, Rule 7, Civil P.C., and the case reported in Ganesh Row V/s. Tuljaram Row (1913) 36 Mad 295. He cannot receive the decretal money amicably and out of Court and give a discharge. The discharge given by a certificated guardian who is appointed next friend of the minor with the permission of the Court is really a discharge by the order of the Court.