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Calcutta High Court
Sm. Jugal Kishore Debi vs Baidya Nath Roy And Anr. on 25 July, 1927
Equivalent citations: AIR 1927 Cal 952
Author: Page


Page, J.

1. This is an appeal from an order of the learned Subordinate Judge of Asansole of the 7th August 1925, dismissing an objection by a judgment-debtor to the execution of a decree passed by the High Court of Patna on the 6th December 1920. The present execution proceedings were commenced on the 23rd March 1925, and, therefore, prima facie were time-barred. The decree-holders contended that the present application for execution was not barred by limitation, because (1) on two previous occasions, 15th April 1921, and the 11th January 1924, applications had been made “in accordance with law” to execute the said decree in the proper Court,” namely, the Court of the Subordinate Judge of Dhanbad and, therefore, under Article 182(5), Statute of Limitation (Act 9 of 1908), the present application was presented within the time limited by the Statute; (2) on the 6fch December 1920, when the decree which it is now sought to execute was passed, two of the three decree-holders were, and still are, minors, and the three decree-holders being jointly entitled to make an application for execution of the decree, and the adult decree-holders not being able to give a discharge to the judgment-debtors without the concurrence of the minor decree-holders the present application was saved from the bar of limitation by the provisions of Sections 6 and 7, Limitation Act. The first contention raised by the decree-holders cannot be supported, for it has not been proved that either of the two previous applications was made (a) in accordance with law; (b) to the proper Court. Under Section 37, Civil P.C. “the Court which passed the decree” of the 6th December 1920, is deemed to be the Court of the Subordinate Judge of Purulia and that Court did not send the decree to the Court of Subordinate Judge of Dhanbad for execution as required by Sections 38 and 39 and Order 21, Rule 6, Civil P.C. As the decree-holders have failed also to prove that the Court of the Subordinate Judge of Purulia had
ceased to exist or to have jurisdiction to execute the decree

the two previous applications to the Dhanbad Court for execution were not made in accordance with law” or to the proper Court,” and are not to be regarded as steps-in-aid of execution within Article 182(5), Limitation Act. It was established, however, that the decree was duly sent to the Court of the Subordinate Judge at Asansole for execution by the Court at Purulia, and that the present application for execution presented in compliance with the provisions of the Civil Procedure Code.

2. With respect to the second contention that has been raised before us by the decree-holders it is necessary to refer to certain material facts that are not in dispute in order that the nature of the proceedings may be appreciated. It is to be observed that the judgment-debtors’ objection to the execution of this decree is utterly devoid of merit, and is based solely upon technical grounds. It appears that the defendants in the suit were officials employed in the management of the estate of one Prosanna Kumar Roy, a trader of Keshalpur, and that, after the death of Prosanna the present suit No. 198 of 1911 was brought in the Court of the Subordidate Judge of Purulia inter alia to compel the defendants to render an account of the moneys that they had received in the course of stewardship. The plaintiffs were two of the sons of Prosanna; (1) Bireswar Roy an adult, (2) Butto Kristo Roy, then a minor, by his next friend and brother Bireswar. The third son of Prosanna, Bhola Nath Roy also a minor was made defendant 7 and appears through his mother Sarojini Debya as next friend and guardian ad litem. The suit was decreed on 16th September 1916, in favour of the plaintiffs and defendant 7 against the judgment-debtor or his predecessors-in-title. The decree-holders, regarding the sum decreed as inadequate, appealed to the High Court at Patna. Meanwhile Butto Kristo had attained his majority and Bireswar had died, and on the 6th December 1920, when the decree of the High Court was” passed, the appellants were (i) Baidyanath Roy, a minor son of Bireswar Roy by his mother Satyabala Debya as his next friend and guardian ad litem, (2) Butto Kristo Roy and (3) Bhola Nath Soy, the other minor son, by his mother Sarojini Debya as his next friend and guardian ad litem. The decree provided inter alia:

Accordingly it is ordered and decreed that the appellants do realise from

Respondent 1, Rs. 18,328-10-9 and costs Rs. 1,448-8-9.

Respondents 2 to 5, Rs. 592-12-6 and costs Rs. 46-13-4.

Respondent 6, Rs. 278-3-0 and costs Rs. 22.

Respondent 7, Rs. 1,777-14-6 and costs Rs. 140-8-0.

Respondent 8, Rs. 27,678-12-9 and costs Rs. ,187-0-9

Respondents 2, 3 4, 5 and 8 Rs. 1,977 and costs Rs, 166-3-6

and the respondents to boar their own costs in the lower Courts

And it is further ordered and decreed that the respondents do pay to the appellants the sum of rupees four hundred and sixty-five annas eleven and pies ten only as per details at foot being the amount of proportionate costs incurred by the latter in this Court.

3. It is not, I think, open to doubt or controversy that this decree quoad the principal defendant was a joint decree which the decree-holders were jointly entitled to execute. In Ahinsa Bibi v. Abdul Kader Saheb [1902] 25 Mad. 26 which was a suit brought by the heirs of a deceased partner for an account, and to recover from the other partners their father’s share of the profits in the partnership, Bhashyam Ayyangar, J., observed:

The claim which was possessed by one individual is now possessed jointly by a number of individuals, who are his legal representatives and all must, therefore, join in a suit to enforce that claim. If one or more of such joint claimants do not join as plaintiffs, the course to be pursued in India, according to long established course of decisions, is for the claimants bringing the suit to join, as party defendants, those who do not join as plaintiffs. The cause of action fort king an account…was one and indivisible, as against the surviving partnars, and it necessarily follows that the suit cannot bo barred in respect of some of his heirs and not barred in respect of the others. It must be either wholly barred or not barred at all. This is the principle underlying Sections 7 and 8, Indiap Limitation Act. (now Section 6 and 7 of the present Act).

4. I respectfully agree with those observations, and hold that the decree in the present suit was one that the three heirs of Prosanna Kumar Roy were jointly entitled to execute within Section 6, imitation Act. See Ahinsa Bibi v. Abdul Kader Sahib [1902] 25 mad. 26, Kandhiya Lal v. Chandar [1885] 7 Al. 313 Sitaram v. Shridhar [1903] 27 Bom. 292, Ranchode Doss v. Rukmany Bhoy [1905] 28 Mad. 487, Surja Kumar Dutt v. Arun Chunder Roy [1901] 28 Cal. 45 and Periasami v. Krishna Ayyan [1902] 25 Mad. 431 per Bhashyam Ayyangar, J, at page 437. A further question still remains to be considered, namely, whether Butto Kristo was able to give a discharge to the judgment-debtors, without the concurrence of the minor decree-holders. I have examined a number of cases upon this subject. It is not easy to disentangle them, and to reconcile them is impossible. But’on the facts of this case I am clearly of opinion that Butto Kristo Roy was not able to give such a discharge to the judgment-debtors within Section 7, Limitation Act. It is not proved that the decree-holders were members of a joint undivided Hindu family, nor whether they were living under the Mitakshara or Dayabhaga School of Hindu Law, nor whether Butto Kristo was acting as karta of a joint Hindu family of which the decree-holders wore members. On the contrary, it is apparent that in these proceedings he did not act or purport to act, as the manager of the family or on behalf of the decree-holders as a whole. Much less has he acted in these proceedings on behalf of Bhola Nath. In my opinion, he has acted solely in his own interest. Butto Kristo was not a party to the Execution Case 35 of 1924 which was brought by Bhola Nath, through his mother as his next friend; and in this suit he did not join Bhola Nath as a co-plaintiff but impleaded him as defendant 7. Moreover, after the decree of the High Court of Patna had been passed on 6th December 1920, Butto Kristo Roy appears to have been substituted in the place of Satyabala Debi as the guardian and next friend of the minor, Baidya Nath Roy, and in that capacity he filed Execution Case’ No. 101 of 1921. It is in that capacity as well as on his own behalf that Butto Kristo is a party to the present application for execution. On the other hand throughout the suit and the proceedings incidental thereto in execution of the decree Bhola Nath has appeared through his mother as his guardian and next friend I am of opinion that according to law, now clearly established, under such circumstances Butto Kristo cannot be held to have been capable of giving a discharge to the judgment-debtors without the concurrence of the minors within Section 7, Limitation Act. See Nobin Chandra Barua v. Chandra Madhab Barua A.I.R. 1916 P.C. 148, Ganesha Row v. Tulja Ram Row [1913] 36 Mad. 295, Lakshmanan Chetty v. Subbiah Chetty , Gang a Dayal v. Mani Ram [1909] 31 All. 156 an Jawahir Singh v. Udai Parkash A.I.R. 1926 P.C. 16.

5. For these reasons I am of opinion that the appeal fails, and must be dismissed with costs – the hearing-fee being assessed at ten gold mohurs. Let the record be sent down without delay.

Graham, J.

6. I agree.

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