Dave, J. - (1.) THIS is a second appeal in execution proceedings by the judgment debtor against the order of the learned District Judge, Pali 3rd February, 1956.
(2.) THE facts giving rise to it are that a suit for the recovery of Rs. 400/- as damages was brought on behalf of Chandmal respondent through his next friend but it was decreed for Rs. 2000/- only by the court of the Judicial Superintendent, Jodhpur. That judgment and decree was upheld by the then Chief Court of Marwar on 4th April, 1947. THE respondent continued to be a minor by that time and therefore in his interest the learned Judges of the Chief Court passed a further order appointing District Judge No. 3 Jodhpur as the guardian of the minor. THE District Judge N. 3 was directed to deposit the sum of Rs. 2000/- in some safe bank, on interest and to allow the respondent's father Ramdayal to draw a sum of Rs. 10/- p. m. for defraying the school expenses of the boy. It was left to the District Judge to increase this amount if the school expenses were to rise. Ramdayal was directed not to withdraw amount larger than the one permitted by the District Judge and to keep an account and submit the same to the District Judge. Lastly it was directed that if any balance is left over on Chandmal's attaining the age of majority, which was clarified as 21 years in this case,- the District Judge No. 3 was to handover that amount to him. It appears that neither the learned District Judge No. 3 nor Ramdayal father of Chandmal, took any steps to recover the amount from the judgment debtor through the court. On 4th March, 1952, Chandmal himself presented an exe-cution application along with a separate application under sec. 6 of the Indian Limitation Act. In the second application, it was mentioned by him that he was born on Asoj Sudi Poonam, Svt. 1989 that he had attained the age of majority when he became 18 years of age on Asoj Sudi Poonam, Svt. 2007 and therefore the period prior to Asoj Sudi Poonam, Svt. 2007, should be excluded. THE judgment debtor contested the execution application on two grounds. It was firstly urged that certain necessary parties were not 'repleaded. This objection was, however, abandoned at the time of arguments in the executing court. His next contention was that the execution application was liable to be dismissed. Curiously enough, the second contention was founded on two contradictory grounds. In the first place, it was urged that Chandmal had not attained the age of 21 years, that he was a minor and therefore the execution application was not maintainable. On the other hand, it was also contended that the decree-holder was in fact, not born in the year 1932 as asserted by him but that he was born in the year 1929 and therefore his application for execution was time barred. It appears that when the case came for arguments before the executing court only one objection namely, regarding limitation was pressed. It was held by the executing court that even if the decree holder was born in 1929 as alleged by the judgment debtor he attained the age of majority in 1950 on reaching the age of 21 years and therefore the execution application was not barred by limitation. With this observation the executing court dismissed the judgment debtors objection. Aggrieved by this order dated 7. 8. 54 the judgment debtor went in appeal but he was unsuccessful and hence he has approached this Court. Learned counsel for the appellant has urged that the respondent was on his own showing born in 1932 that on 4. 3. 52 when he presented the execution application, he was only 20 years of age and since he had not attained the age of majority, which in the present case was to be on the expiry of 21 years, he has no right to present the execution application without a next friend and it ought to have been rejected. It may be observed that a party may be permitted to take alternative stand on a question of law but it cannot be permitted to take that stand on facts which ate contrary to each other. The judgment debtor in the present case had taken his stand in the executing court on the fact that the respondent was born in the year 1929 and therefore his application was time barred. This objection was dismissed. Now he wants to urge that the decree holder was born in 1932 and not in 1929. He had abandoned in the executing court the stand that the decree holder was born in 1932 and so he cannot now be permitted to fall back on that argument. It appears that in the first appellate court also the appellant's stand was that the execution application was time barred. If the appellant really thought that the decree-holder was a minor on 4-3 52 then he should not have pressed the ground of limitation and his only prayer under O. 32 R. 2 should have been that the execution application should be taken off the file. If he had stuck to that position and if the executing court had allowed that objection then it could be open to the decree holder to present another application for execution as soon as he became 21 years of age. The appellant, however, did not choose to stick to that ground and he cannot be permitted bow to change his position on facts. Moreover, it may be observed that even if it be assumed for the sake of argument that the respondent was born in 1932 and was thus only 20 years of age on 4. 3. 52 and that he had not become 21 years of age, the executing court could at the most order the execution application to Be taken off the file before he attained the age of 21. When no such order was passed and when during the course of proceedings the decree holder became major, it was not incumbent upon the executing court to have the execution application taken off the file. There could be no sense in passing such an order alter the decree holder attained the age of majority. In Lalumal Dholumal vs. Harumal Lal Singh (1) an execution application was presented by one Sobhomal when he was over 18 years of age and when he had not attained the age of 21 years. In that case also a decree was passed in Sobhomal's favour in a suit which was brought by him through his next friend. During the course of the execution proceedings a receiver was appointed by the court. When the receiver proceeded to receive the rent, an objection was raised that the execution application was not properly presented, because Sobhomal was a minor at that time. In those circumstances which were similar to the circumstances in the instant case, it was observed that O. 32, R. 5 C. P. C. was intended for the benefit of a minor and was not intended to enable a father to defraud his minor son of his rights. It was further observed that sub-rule 2 to Rule 5 does not say that any order on any application made by a minor where no next friend ' or guardian is appointed ''shall" be discharged; it "says" "may" be discharged. We cannot construe that sub-rule to deprive the court of its discretion to allow proceedings, which are in the interests of the minor to go on or to permit them to be frustrated by mere accident or technicality, such as in this case could deprive Sobhomal of the right to recover these rents through the receiver. "i respectfully agree with this observation. As pointed out above, the only result of the judgment debtors objection under O. 32 R. 5 would have been rejection of the execution application and it would have been open to the decree-holder to present a fresh application, because he attained the age of 21 years soon after the present application was presented by him. That would have only been a technical formality. When the decree holder attained the age of majority before the court ordered his application to be taken off the file there could be ho point in returning it to him to be presented to the court in the very next moment. There is thus no force in this appeal and it is hereby dismissed with costs. .;