JUDGMENT
Ramachandra Rao, J.
1. This Letters Patent appeal is preferred against the judgment of Justice S. H. Sheth dismissing the Civil Miscellaneous Appeal and confirming the order of the trial Court dismissing the Execution Petition filed by the appellants.
2. The relevant facts are as follows:-
The respondent executed a promissory note in favour of one P. Ramachandra Reddy , the father of the appellants 1 and 2, and the husband of the appellants 3 and 4. On the foot of the said note, the appellants obtained a decree in O.S. No. 89/58 on the file of the Court of the II Addl. Judge, City Civil Court, Hyderabad and obtained a money decree of Rs. 12,000/- and odd against the respondent on 10-9-1959. The appellants/decree -holders filed an execution petition E.P. No. 35/71 on 5-8-1971 for execution of the decree by attachment and sale of the judgment- debtor’s properties. On the same date, notice was ordered in the said execution petition to the judgment- debtor under O.21 , R.22, C.P.C. returnable by 5-10-1971. The endorsement shows that the notice was served by affixture on 10-9-1971. The judgment- debtor did not appear on 5-10-1971. The trial Court ordered attachment and the warrant was made returnable by 22-10-1971.
3. At that stage, the judgment-debtor filed an application E.A. No. 152/71 before the trial Court objecting to the execution of the decree on the ground that it was barred by limitation. The executing Court upheld the contention and dismissed the Execution application. The appellants preferred an appeal C.M.A. No. 398/75 to this Court against the said order of the executing Court. The appeal was also dismissed. Before the learned Judge, it was contended that after the filing of the Execution Petition notice was issued to the judgment-debtor, but he failed to appear, and thereafter attachment was ordered and effected and it is only after the attachment was levied that the judgment-debtor filed a separate application raising an objection as to limitation , and that such an objection as to limitation , could not be raised by the judgment- debtor at a subsequent stage after attachment was ordered. In support of this contention , reliance is placed upon the decision in Venkataranga v. Sithamma, AIR 1941 Mad 440. But the learned Judge was not inclined to allow the appellants to raise the said objection , as such contention , was not raised before the executing Court. The learned Judge also took the view that in the instant case , the judgnment- debtor did not raise the present objection in subsequent proceedings, and that he raised the objection in the same proceedings., after the attachment was levied and , therefore , he could be permitted to raise such an objection . The learned Judge also took the view that under Sec. 3 (1) of the Limitation Act , every suit preferred , instituted , appeal preferred, application made after the prescribed period, shall be dismissed although limitation has not been set up as a defence. In that view , the learned Judge rejected the contention of the appellants that the judgment – debtor could not be permitted to raise the objection ass to limitation.
4. Another contention was raised before the learned Judge that the appellants 1 and 2 were born on 1-6-1950 and 12-4-1954 respectively and they were minors at the time of filing the execution petition and , therefore, all the decree- holders- appellants were entitled to the benefit of S. 7 of the Limitation Act. But, this, contention was also repelled by the learned Judge holding that where there are several decree-holders jointly holding a decree, some of whom are minors and some of whom are majors, when one or more major decree- holders can receive the monies from the judgment – debtor and give a valid discharge, they do so in their own right as joint decree- holders and not on behalf of the minor decree-holders, and that in the instant case, since two of the decree-holders were competent in their own right to receive the decretal amount and to give a valid discharge of the decretal debt, Section 7 of the Limitation Ac would not be available to the minor decree-holders. On those findings, the learned Judge dismissed the C.M.A.
5. In this appeal , Sri. K. Srikrishna, the learned counsel for the appellants-decree- holders firstly contended that the judgment- debtor did not appear when notice was ordered under o. 21 , R. 22, C.P.C. in the execution petition and thereafter, an order was passed under O. 21, R.23 , C.P.C. ordering the decree to be executed by attachment of the judgment – debtor’s properties and attachment was actually effected , and that the judgment- debtor having failed to raise any objection to the execution at that stage, he is barred by res judicata from raising such a plea at a later stage. In support of this contention , he relied upon a decision in Venkataranga v. Sithamma ( AIR 1941 Mad 440 ) (supra ) , where it was held by a Division Bench of the Madras High Court as follows :
” An order under O. 21 , R. 23 (1) in cases where the judgment- debtor appears and objects but the objections are over-ruled, being an appealable adjudication binding on the parties so long as it is unreserved, a similar order under R. 23 (1) in cases where the judgment -debtor does not choose to appear in response to the notice duly served on him , must be regarded as having the same effect and therefore can operate as res judicata between the parties . Consequently, there is no justification for the view that an order under R. 23 (1) ” has to be automatic’ and that an order under R. 23 ( 2 ) alone amounts to an ‘ adjudication’ such as would fall within the definition of a decree. Nor can there be any logical difference for the application of the principle of res judicata between an application which results in partial satisfaction of the decree and is then allowed to be dismissed, and one which is eventually dismissed without any ‘ fructification’. Therefore, an order for execution made after notice to the judgment- debtor who does not appear and offer any objection precluded him from raising a plea of limitation in subsequent proceedings even though the application on which the order was passed does not fructify and is eventually struck off or dismissed”.
6. This ruling was followed by the Gujarat High Court in Ganchi Laxmichand v. Tulsidas, where in it was held as follows ( at pp. 2 and 3 ) :-
” where a judgment- debtor does not appear in answer to the notice under O. 21, R. 22, Civil P.C.., to show cause why the decree should not be executed against him, O. 21 , R 23 provides that the Court shall order the decree to be executed. An order under O. 21 , R. 23 of Civil P.C. being a determination of a question within S.47 amounts to a decree within the meaning of S. 2 (2) and an appeal, therefore, lies from such order. If the person against whom the decree is sought to be executed does not file an appeal from an order made against him under O. 21, R. 23 , he cannot be permitted to contend at any subsequent stage of the execution proceedings that the order was not rightly made. If so , he cannot also raise at any subsequent stage of the execution proceedings the same contentions which were urged by him against the execution of the decree at the time of the hearing of the notice under O. 21 , R.22, for, the effect of allowing him to do so will be to permit him to challenge the correctness of the order which he can do only by way of an appeal. The order passed by the Court under O. 21, R.23 will operate as res judicata in regard to the contentions urged against the execution of the decree in answer to the notice under O.21, R . 22. If the order under O.21, R. 23, can operate as res judicata in regard to the contentions urged at the hearing of the notice under O.21, R.22, that order must equally operate as constructive res judicata in regard to the contentions which might and ought to have been urged against the execution of the decree in opposition to the notice under Order 21, R.22. Equally must the O.21, R. 23 operate as constructive res judicata if the person against whom the decree is sought to be executed does not appear in answer to the notice under O.21 , R.22 and the order directing the decree to be executed is, therefore, made by the Court . In such a case all contentions which might and ought to have been urged by such person showing cause why the decree should not be executed will be barred by the principle of constructive res judicata and it will not be open to such person to raise those contentions at any subsequent stag of the execution proceedings”.
7. In the instant case, when notice was ordered on 5-8-1971 under O. 21, R. 22, C. P. C. in the Execution Petition No. 35/71 returnable by 5-10-1971 the judgment-debtor did not appear and thereafter the Court passed an order under O. 21, R. 23 (1) directing execution to proceed by attachment of the properties of the judgment-debtor and the warrant was made returnable by 22-10-1971. Thus, the order directing execution to proceed made under O. 21 R. 22 read with O. 21, R. 23 (1) had become final and amounted to a decree, which not having been appealed against would clearly operate as res judicata. Therefore, it is not open to the judgment-debtor to raise such an objection at a later stage by filing an independent application and, the judgment-debtor is barred by res judicata from raising any objection to the execution of the decree at a later stage.
8. This contention on behalf of the decree-holders was not allowed to be raised by Sheth, J. in the appeal on the ground that it was not raised before the executing Court. But, a contention was raised in the trial Court that the judgment-debtor was set ex parte, and that the application E. A. No. 152/71 was not maintainable. In the memorandum of grounds of appeal in C. M. A. No. 398/75, a ground was raised that the executing Court erred in refusing to permit the decree-holders to raise the contention that the judgment-debtor having been set ex parte could not at a subsequent stage raise an objection as to limitation. A contention that the judgment-debtor could not raise any objection to the execution of the decree on the ground of limitation as he failed to appear and remained ex parte, was clearly raised in the trial Court, and this contention should have been considered by the trial Court and also on appeal.
9. It is, however, contended by Sri P. Ramachandra Rao, the learned counsel for the respondent-judgment-debtor that notice was not served on the judgment-debtor in E. P. No. 35/71 and the service by affixture was not effected as required by O. 5, R. 17 and R. 19, C.P.C. In the suit itself, the judgment-debtor was shown as a resident of Himayatnagar near Gowda Hostel, Hyderabad and he remained ex parte and the suit was decreed on 10-9-1959. In the execution petition E. P. No. 35/71, notice was ordered under O. 21, R. 22, C. P. C. to the judgment-debtor to the same address as given in the plaint and in the decree, and the notice was served by affixture at the residence of the judgment-debtor as evidenced by the endorsement made by the Central Nazir on the notice. But, it is contended by Sri P. Ramachandra Rao, that the service was not effected properly as required by O. 5, Rr. 17 and 19, C. P. C. But, we are unable to agree with this submission. As already mentioned, the record shows that the service was effected by affixture and, therefore, the judgment-debtor must be deemed to have been aware of the filing of the execution petition, and the judgment-debtor having failed to appear and take objection to the execution when notice was ordered under O. 21, R. 22, and the order having been passed under O. 21, R. 23 (1) directing execution to proceed, the judgment-debtor is precluded from raising an objection to the execution by filing a separate application at a later stage of the same execution proceeding.
10. The second contention urged by Sri K. Sri Krishna is that the decree-holders 1 and 2 are minor children of the 3rd decree-holder, and that the 4th decree-holder is their step mother, and that the major decree-holders could not give a valid discharge to the decree without concurrence of the minor decree-holders, and , therefore, time would not run against any of the decree-holders until one of them becomes capable of giving such a discharge without concurrence of the others or until the disability ceased.
11. Under S. 6 of the Limitation Act, where a person is under disability, being a minor or insane, or an idiot, the time during which the person is under disability has to be excluded in computing the period of limitation prescribed for filing a suit or application for execution of a decree. Section 7 applies to cases where one of several persons jointly entitled to institute a suit or make an application for execution of a decree is under disability, and it reads as follows :-
“7. 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 of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.”
12. Sri Srikrishna relies upon the latter part of S. 7 and submits that as the major decree-holders 3 and 4, the mother and step-mother respectively, were not capable of giving a discharge with regard to the minor decree-holders 1 and 2, time would not run against any of the decree-holders until one of them becomes capable of giving a valid discharge without concurrence of the others or until the disability has ceased.
13. It is contended that neither of the major decree-holders is a manager of the family, and that the 3rd decree-holder, though acted as guardian of the minor decree-holders, cannot give valid discharge to the decree without leave of the Court as required by the provisions of O. 32, R. 6, C. P. C. In Ganesha Row v. Tuljaram Row, (1913) ILR 36 Mad 295, in a suit for partition by a member of a joint family, the father was made 3rd defendant, and the son, a minor, was made 6th defendant, and the father was appointed as guardian ad litem of the minor. Section 462 of the old C. P. C. of 1882 provided that ;
“No next friend or guardian to the suit shall, without the leave of the Court, enter into any agreement or compromise on behalf of a minor, with reference to the suit in which he acts as next friend or guardian.”
The father entered into a compromise and in pursuance of such compromise, satisfaction of the decree was recorded. Their Lordships of Privy Council held that the powers of the father were controlled by the provisions of S. 462, C.P.C. and he could not without leave of the Court do any act in his capacity of father or managing member of the joint family which he was debarred from doing as guardian ad litem, and that to hold otherwise would be to defeat the object of the enactment.”
14. In Fatimabai v. Tukabai, AIR 1945 Nag 95 it was held that
“The execution proceedings are a continuance of a suit and a next friend or guardian, after a decree is passed cannot enter into a compromise or an adjustment of the decree without the sanction of the Court.”
The learned Judges further held that :
“Even if a joint decree-holder acts as a manager on behalf of the joint family he is subject to o. 32, Rr. 6 and 7, C. P. C.”
15. In Kamaleshwari Prasad Singh v. Shivachandra, AIR 1949 Pat 212, it was held as follows:
“It is only in a case where a co-decree-holder could give a valid discharge that S. 7 will not extend the period of limitation. Where at the time the decree is sought to be executed some of the co-decree-holders are minors, the natural guardian of the minor decree-holders is not a co-decree-holder, and therefore, she cannot give a valid discharge on their behalf during the continuance of their minority. The provisions of S. 7 apply in favour of the decree-holder.”
16. In Amalgamated Coal Fields Ltd. v. Mst. Chhotibai, 1973 Acc CJ 365 : (1973 Lab IC 1410) (Madh Pra), it was held that S. 7, which is a proviso to S. 6, extends the period of limitation on the ground of disability of one or more of several persons who are jointly entitled to sue, provided that the persons not under a disability could give a discharge without the concurrence of the person or persons under disability. On the facts of that case, it was held that the widow and her minor daughters who filed the suit were co-heirs and tenants in common having distinct shares, and that the mother could not under Hindu Law give a discharge in her own right in respect of the rights of her daughters, and, therefore, the second part of S. 7 of the Limitation Act applied and the limitation was extended in favour of the entire body of the plaintiffs who had joint right to sue.
17. Where a labourer killed by a motor accident left behind his widow and two minor sons, time for filing petition for compensation under S. 110-A of the Motor Vehicles Act, 1939 would not run against any of the claimants until both the minor sons ceased to be under disability, because no discharge could be given by the mother without the concurrence of the minors, vide, Punjabhai Prabhudas & Co v. Sakinaben, AIR 1977 Guj 179.
18. In this context, it is necessary to notice the provisions of O. 32, R. 6, C. P. C. O. 32, R.6 provides that the next friend or guardian for the suit shall not, without the leave of the court, receive money or other movable property on behalf of a minor either by way of a compromise before decree or order, or under a decree or order in favour of the minor. By virtue of these provisions, a next friend or guardian of a minor cannot without leave of the court give a valid discharge of the decree or withdraw any monies deposited by the judgment-debtor for the benefit of the minor decree-holders.
19. O. 21 R. 15 which provides for filing of an application for execution by joint decree-holder, reads as follows :-
“O. 21, R. 15 (1) where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.
(2) where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application.”
20. It was held in M. D. Kazam v. Nadir Ali Shah, AIR 1931 Lah 5 that though O. 21, R. 15, C. P. C. enables a joint decree-holder to execute a decree for himself and for the benefit of the other decree-holders, that did not confer an unconditional right on one of the decree-holders, that did not confer an unconditional right on one of the decree-holders to execute a decree and such a right was subject to the control by the execution Court, and that rule, therefore, would not really affect the provisions of S. 7 of the Limitation Act.
21. S. 7 extends the period of limitation to some case where there is a joint decree in favour of persons who are under any such disability as is mentioned in S. 6. Section 7 contemplates a legal capacity to give discharge without the concurrence of the person under a disability. For instances, a partner or a karta of a Hindu joint family has power to realise the whole of the decretal debt without the consent of the other decree-holders. But, a guardian of a minor cannot, without the permission of the Court realise monies payable to a minor decree-holder under a decree of Court, by reason of the provisions of O. 32, R. 6, C. P. C.
22. In the instant case, there are four joint decree-holders, out of whom two are minors and are represented by their mother, 3rd decree-holder, as guardian and neither of the major decree-holders, viz., the mother and the step-mother, could give a valid discharge on behalf of the minor decree-holders. Therefore, the provisions of latter part of S. 7 of the Limitation Act are applicable to the facts of this case and the time for execution would stand extended till the disability of the minor decree-holders ceased. Admittedly, the minor decree-holders ceased. Admittedly, the minor decree-holders were minors on the date of filing of the execution petition, If so, the application for execution is not barred by limitation.
23. For the foregoing reasons, this appeal is allowed, and the order of the trial Court allowing E. A. No. 152/71 and dismissing the execution petition E. P. NO. 35/71, and the judgment of Sheth, J. dismissing the execution petition E. P. No. 35/71, and the judgment of Sheth, J. Dismissing the appeal A. A. O. No.398/75 are set aside, and the trial Court is directed to take further proceedings in E. P. No. 35/71 for execution of the decree. The respondent will pay the costs of the appellants throughout.
24. Appeal allowed.