Case: Sarda Prasad And Others Vs. Lala Jumna Prasad And Others

The decree sought to be executed was made by the Civil Judge, Kanpur, on September 2, 1938, in a suit for partition brought by two brothers Jumna Prasad and Devi Prasad and two minor sons of Jumna Prasad, against Gajju Lal, his son Jawala Prasad, the four minor sons of Jawala Prasad - Sharda Prasad, Dharam Pal, Ram Pal and Krishna Pal, and one Smt. Sundari. By the decree one of the properties, a house formerly bearing No. 36/22 and now 36/58, Etawa Bazar, Kanpur, was awarded along with other properties to the defendants in the suit. The present application for execution was made by the four brothers, Sharda Prasad,, Dharam Pal, Ram Pal and Krishna Pal on November 23, 1949. The prayer was that these applicants may be delivered possession over this Etawa Bazar house along with Gajju Lal, Jawala Prasad and Smt. Sundari on dispossession of Jumna Prasad and Devi Prasad. It is stated in the application that all these applicants had uptill now been minors and one of them is still a minor and so no question in respect of time arises. This, it is important to note, was the first application for execution of the partition decree2. A number of objections were raised; but the principal objection and the only one with which we are concerned in this appeal was that the application was barred by time. The decision of this question depended on the answer to the question raised on behalf of the opposite parties that Jawala Prasad one of the persons entitled jointly with these applicants to make an application for the execution of the decree could have given a discharge of the liability under the decree without the concurrence of his minor sons and so time ran under S. 7 of the Limitation Act against them also from the date of the decree3. The trial Court did not feel satisfied that Jawala Prasad could give a valid discharge and held accordingly that the application was within time4. On appeal the High Court held that Jawala Prasad as the Karta of the Hindu Joint Family could act on behalf of the entire joint family in taking possession of the house allotted to the defendants and delivery of such possession could discharge the liability qua the entire joint family and held accordingly that the application was barred by limitation. The High Court however granted a certificate under Art. 133(1)(c) of the Constitution and on that certificate this appeal has been filed by the applicants for execution.

Reasoning: 6. On the first contention the argument is that the word discharge is appropriate only in respect of a monetary claim and is wholly inappropriate in respect of any decree for possession whether on partition or otherwise. There is, in our opinion, no substance in this argument. The mere fact that the two illustrations to S. 7 are in respect of debts is no ground for thinking that the provisions of S. 7 are limited to suits or decrees on monetary claims only. Nor can we see any reason to think that the word discharge can refer only to debts. Discharge means, to free from liability. The liability may be in respect of monetary claims, like debts; it may be in respect of possession of property; it may be in respect of taking some order as regards property; it may be in respect of many other matters. Except in the case of declaratory decrees or decrees of a similar nature, the decree in favour of one person against another requires the person against whom the decree is made liable to do something or to refrain from doing something. This liability is in a sense a debt which the party is in law bound to discharge. The ordinary use of the word judgment-debtor to denote a person against whom a decree has been made makes a clear recognition of this. It is worth mentioning in this connection that theCode of Civil Procedure itself defines judgment-debtor to mean any person against whom a decree is passed or an order capable of execution has been made7. It is helpful to notice in this connection the provisions of S. 8 of the Limitation Act that nothing in S. 6 or S. 7 applies to suits to enforce rights of pre-emption. If S. 7 had been applicable merely to litigation for monetary claims it would have been unnecessary and indeed meaningless to take the special step of exempting suits to enforce rights of pre-emption from the operation of S. 7.This is a further reason in support of the conclusion that the word discharge in S. 7 is not limited to discharge of monetary claims only but also to discharge or satisfaction of all other liabilities as well. We, therefore, hold that the first argument raised on behalf of the appellants has no substance8. Equally untenable is the second argument that the provisions of O. 32 of theCode of Civil Procedure debar the manager of a Hindu joint family from giving discharge in respect of a liability to deliver properties. Under the Hindu Law the Karta of a Hindu joint family represents all the members of the family and has the power and duty to take action which binds the family in connection with all matters of management of the family property. Clearly, therefore, when in respect of a transaction of property possession has to be received by the several members of the family, it is the Kartas duty and power to take possession on behalf of the entire family, including himself, the members of the family who are sui juris as well as those who are not11. In the present case, however, there is no scope for the application of either the provisions of O. 32, R. 6 or O. 32, R. 7 of theCode of Civil Procedure. Neither is this a case of a receipt of any money or movable properties; nor is there any question of entering into an agreement or compromise on behalf of the minor. For, clearly acceptance of delivery of possession of property in terms of the decree in a partition suit can by no stretch of imagination be considered entering into any agreement or compromise12. We are, therefore, of the opinion that Jawala Prasad, the managing member of the family could have given a discharge of the liability under the partition decree by accepting delivery of possession on behalf of his minor sons without their consent and so time ran against them also under S. 7 of Limitation Act from the date of the decree. The High Court was, therefore, right in its conclusion that the application for execution was barred by limitation.