Radhakishan Jaikishan vs Kalicharan

Chaturvedi, J.—The only point pressed in this miscellaneous appeal by Shri N.P. Dwivedi is, that the present execution application is barred by time, and the learned Civil Judge, Class I, Khandwa, was in error when he held that it was within time.

To understand the implications on this point, some facts may be stated briefly. Mst. Pannibai, the mother of respondents 1 and 2, and respondent No. 2 Suraj Prashad, filed a suit against the present appellants and obtained a consent decree on 7th October 1936. The defendants were allowed to pay the decretal amount in certain instalments which are stated in paragraph 2 of the order of the learned lower Court. In default of 3 yearly instalments, the whole was to be paid atonce.

There was a default in the payment and the decree-holders took out execution for the recovery of Rs. 3,528-4-0 on 23rd July 1941. On the 10th January 1942, the judgment-debtors paid Rs. 600 to the decree-holders and the execution was dismissed as the decree was partly satisfied. At this date, there was a balance of Rs. 2,928-4-0 in the decretal amount. Meanwhile, Pannibai, decree-holder, died. She had two sons, Surajprashad and Kalicharan. The name of the former was already on record, and so the name of the minor son, Kalicharan, was brought on record on 8th April 1942.

Then an application was made by Surajprashad on behalf of himself and on behalf of his minor brother, and also by the judgment-debtors, to have an adjustment recorded as certified. It was mentioned that the decree-holders had agreed to accept Rs. 1,800 in full satisfaction of the decree and to forego the remaining amount. The judgment-debtors had paid Rs. 150 before the application and Rs. 1,000 in cash on 3rd April 1842, and therefore, it was stated that the balance of Rs. 650 would be paid on 1st March 1943. On 15th April 1942, the adjustment was ordered to be recorded as certified.

Kalicharan, at that time, was a minor, and Surajprashad, his next friend, did not seek permission from the Court to enter into a compromise on his behalf. So Kalicharan through his next friend, his father, made an application for setting aside the order recording the adjustment as certified, alleging that the adjustment could not have been for his benefit. This application was rejected on 15-9-1942.

The minor Kalicharan then went in appeal to the High Court of Judicature at Nagpur, and the High Court set aside the order of the executing Court and sent the case back for a finding whether the adjustment was for the benefit of the minor, and whether it was a fit case for according sanction, This order was passed on 18th November 1946 in miscellaneous appeal No. 331 of 1942.

The Civil Judge, Class 1, Khandwa, held an enquiry and held that the adjustment which had been certified and which bad been set aside by the High Court, could not be for the benefit of the minor decree bolder, Kalicharan, and therefore, the adjustment was set aside. The order was passed on 16th August 1949.

Against this order, the judgment-debtors went in appeal to the High Court, The appeal failed and it was dismissed with costs on 10th April 1953.

Then Kalicharan, minor, through his next friend, his father Mangal Singh, took out execution of the decree, for the first time, on 22nd January 1934. Kalicharan attained majority on 23rd November 1953 and on his application being granted, be was permitted to prosecute the application for execution himself. The application was opposed by the judgment-debtors and the main point taken in the execution Court which is material in this appeal is, that the application, either under Sec. 48 of the CPC or under Art. 182 of the Indian Limitation Act was barred by time.

This is the main point pressed before me by Shri N.P. Dwivedi but Shri J.V. Jakatdar invites my attention first to sub-sec. 2 of Sec. 48 of the Code of Civil Procedure, and urges that the judgment-debtors in this case have, by fraud, prevented the execution of the decree at sometime within 12 years, immediately before the date of the application; and therefore, that period must be excluded.

The word ''fraud'' in sub-sec. 2 of Sec, 48 of the CPC is to be interpreted in a wider sense, and it has been held that any Improper means to prevent execution would be ''fraud'' within the meaning of this sub-section, Thus delaying execution by manifestly frivolous, futile and dishonest objections has been held to be fraud (See Lalta Prasad Vs. Suraj Kumar and Others,

From 8th April 1942 to 16th August 1949, the minor Kalicharan, decree-holder, could not execute the decree in view of the false and frivolous plea of adjustment, taken by the judgment-debtors. This period of 7 years 4 months and 8 days, is to be excluded from computation and the execution will be within time.

The next point taken by Shri Jakatdar, learned counsel for the Respondent is, that the mere fact that there is a guardian for the person under disability, does not deprive such person of the indulgence granted by Sec, 6 of the Indian Limitation Act. The learned counsel for the respondents drew my attention to Note No. 35 at page 281 of Volume 1 of Chitaley''s Commentaries on the Indian Limitation Act, and the cases cited therein are definitely in favour of the respondents.

In Satyendra Narain Sinha and Others Vs. Pitamber Singh and Others, it has been held in clear words, that where a guardian for minor applies for execution of a decree obtained on behalf of the minor, and the application is held to be barred by limitation, the minor is not precluded from applying for execution of the decree within the statutory period of 3 years from the date of attaining majority, and the order in the previous execution proceedings is not binding on him.

I need not multiply authorities cited in Note 35 of Chitaley''s Commentaries. It will be sufficient to observe that Kalicharan, minor, decree holder, had attained majority only on 22nd March 1953, and the application for execution filed on 22nd January 1954, will be within limitation.

The appeal, therefore, is devoid of substance and must fail, It is dismissed with costs.