# SARDA PRASAD AND OTHERS v. LALA JUMNA PRASAD AND OTHF.RS

- **Citation:** [1961] 3 S.C.R. 875
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appea.1 Sa1da P1asad No. 2?6 of1956
- **Bench:** P. B. Gajendragadkar, K. C. DAs GuP'rA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sarda-prasad-and-others-v-lala-jumna-prasad-and-othf-rs-1938
- **Pages:** 6

## Headnote

Limitation-Execution-Decrre for joint possessic;i in favour of
Hindu father and minor sons-Failure of father to exewte within the
period of limitation-Right of sons; if barred-Indian Limitation
Act, I908 (9 of z908), s. 7-Code of Civil Procedure, 1908 (5 of 1908);
0. ,3a, rr. 6, 7.
A decree dated September 2, 1938, in a suit for partition of
joint Hintlu family property awarded a house to the share of one
J and his lour minor sons. J failed to execute the decree. On
November 23, 1949, an application wa; made by the appellants,
the four sons of J, for execution of the decree stating that throe of
them had been minors till then and one of them was still a minor
and so no question of limitation arose. The respondent objected
that the application was barred under s. 7 of the Indian Limitation Act. The appellants contended that s. 7 did not apply to a
partition decree and thats. 7 was no bar as J conld not have given
a valid discharge of the liability under the decree in view of
the provisions of 0. 32 of the Code of Civil Procedure.
Hel1, that the application for execution was barred by limitation. J, the managing member of the family could have given a
discharge of the liability under the partition decree by accepting
JA)Ssession on behalf of his minor sons without their conseP.t and
so time ran against them under s. 7 from the date of the decree.
Order 32, rr. 6 and 7 were no bar to J giving a discharge of the
liability under the decree as it was neither a case of receipt of any
money or movable property nor was there any question· of entering into an agreement or compromise on behalf of the minors.
Ganesha Row v. Tuljaram Row, (1913) L.R. 40 I.A. 132,
Parm.shwari Singh v. Ranjit Singh, A.LR. 1939 Pat. 33 and
Letchmana Chetty v. Subbiah Chetty, (1924) I.L.R. 47 Mad. 920,
referred to.
1961
F8bruary ao.
876
SUPREME COURT REPORTS
[1961)
r961
CrvIL APPELLATE
JURISDICTION :
Civil Appea.1
Sa1da P1asad
No. 2?6 of1956.
v.
Appeal from the judgment and decree dated OctoL•I• JumnaP1asadber 15, 1954, of the Allahabad High Court in Execution
First Appeal No. 224 of 1951.
S. P. Sinha a.nd Tiryugi Narain for the a.ppella.nts.
G. O. Mathur, for respondent No. I.
1961. February 20. The Judgment of the Court
was delivered by
·
Das Gupta J.
DAs GUPTA, J . ...,....This appeal raises a. question of
limitation in execution proceedings. The decree
sought to be executed wa.s made by the Civil Judge,
Kanpur, on September 2, 1938, in a suit for partition
brought by two brothers Jumna Pra.sa.d and Devi
Prasad and two minor sons of J umna. Pra.sa.d, against
Ga.jju La.I, his son Ja.wala. Prasad, the four minor sons·
of Jawala. Pra.sa.d-Sharda. Pra.sa.d, Dha.ra.m Pa.I, Ram
Pa.I and Krishna. Pal, and one Smt. Sunda.ri. By the
decree one of the properties, a house formerly bearing
No. 36/22 and now 36/58, Eta.we. Bazar, Kanpur, was
awarded a.long with other properties to the defendants
in the suit. The present application for e~ecution
was ma.de by the four brothers, Sharda. Pra.sarl,
Dha.ra.m Pal, Ra.m Pa.I and Krishna. Pa.I on November 23, 1949. The prayer was that ·these applicants
ma.y be delivered possession over this Eta.we. Bazar
house a.long with Ga.jju La.I, Ja.wa.la. Pre.sad and Smt.
Sunda.ri on dispossession of Jumna. Pra.sa.d and Devi
Prasad .. It is stated in the application that all these
applicants had " up till now been minors and one of
them is still a. minor and so no question in respect of
time a.rises." This, it is important to note, was the
first application for execution of the partition decree.
A number of objections we.re raised; but the principal objection and the only one with which we a.re
concerned in this a.ppea.l 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 Ja.wa.la. Prasad one of the persons
entitled jointly with these applicants to make an
application for the execution of the decnie could have
,.
3 S.C.R.
SUPREME C

## Text

't·
I
L
,
3 S.C.R.
SUPREME COURT REPORTS
875
We therefore allow the appeals, set aside the order
1961
of the High Court and restore that of the. Custodian
Custodian of
dated December ll, 1952 .. This of course will not take Evacuee Prop111y,
a.way the right if any of the. respondents to approach
Bangalore
the Custodian-General, for we ha-ve not <JOn~dered
v.
the merits of the order of December 2, 1952. In the KhanSahebAbdul
·
f th'
d
t
Shukoor
circumstances o
. 1s case we pass no or er as o
costs.
Wanchoo ].
Appeals allowed.
SARDA PRASAD AND OTHERS
v.
LALA JUMNA PRASAD AND OTHF.RS.
(P. B. GAJENDRAGADKAR and K. C. DAs GuP'rA, JJ.)
Limitation-Execution-Decrre for joint possessic;i in favour of
Hindu father and minor sons-Failure of father to exewte within the
period of limitation-Right of sons; if barred-Indian Limitation
Act, I908 (9 of z908), s. 7-Code of Civil Procedure, 1908 (5 of 1908);
0. ,3a, rr. 6, 7.
A decree dated September 2, 1938, in a suit for partition of
joint Hintlu family property awarded a house to the share of one
J and his lour minor sons. J failed to execute the decree. On
November 23, 1949, an application wa; made by the appellants,
the four sons of J, for execution of the decree stating that throe of
them had been minors till then and one of them was still a minor
and so no question of limitation arose. The respondent objected
that the application was barred under s. 7 of the Indian Limitation Act. The appellants contended that s. 7 did not apply to a
partition decree and thats. 7 was no bar as J conld not have given
a valid discharge of the liability under the decree in view of
the provisions of 0. 32 of the Code of Civil Procedure.
Hel1, that the application for execution was barred by limitation. J, the managing member of the family could have given a
discharge of the liability under the partition decree by accepting
JA)Ssession on behalf of his minor sons without their conseP.t and
so time ran against them under s. 7 from the date of the decree.
Order 32, rr. 6 and 7 were no bar to J giving a discharge of the
liability under the decree as it was neither a case of receipt of any
money or movable property nor was there any question· of entering into an agreement or compromise on behalf of the minors.
Ganesha Row v. Tuljaram Row, (1913) L.R. 40 I.A. 132,
Parm.shwari Singh v. Ranjit Singh, A.LR. 1939 Pat. 33 and
Letchmana Chetty v. Subbiah Chetty, (1924) I.L.R. 47 Mad. 920,
referred to.
1961
F8bruary ao.
876
SUPREME COURT REPORTS
[1961)
r961
CrvIL APPELLATE
JURISDICTION :
Civil Appea.1
Sa1da P1asad
No. 2?6 of1956.
v.
Appeal from the judgment and decree dated OctoL•I• JumnaP1asadber 15, 1954, of the Allahabad High Court in Execution
First Appeal No. 224 of 1951.
S. P. Sinha a.nd Tiryugi Narain for the a.ppella.nts.
G. O. Mathur, for respondent No. I.
1961. February 20. The Judgment of the Court
was delivered by
·
Das Gupta J.
DAs GUPTA, J . ...,....This appeal raises a. question of
limitation in execution proceedings. The decree
sought to be executed wa.s made by the Civil Judge,
Kanpur, on September 2, 1938, in a suit for partition
brought by two brothers Jumna Pra.sa.d and Devi
Prasad and two minor sons of J umna. Pra.sa.d, against
Ga.jju La.I, his son Ja.wala. Prasad, the four minor sons·
of Jawala. Pra.sa.d-Sharda. Pra.sa.d, Dha.ra.m Pa.I, Ram
Pa.I and Krishna. Pal, and one Smt. Sunda.ri. By the
decree one of the properties, a house formerly bearing
No. 36/22 and now 36/58, Eta.we. Bazar, Kanpur, was
awarded a.long with other properties to the defendants
in the suit. The present application for e~ecution
was ma.de by the four brothers, Sharda. Pra.sarl,
Dha.ra.m Pal, Ra.m Pa.I and Krishna. Pa.I on November 23, 1949. The prayer was that ·these applicants
ma.y be delivered possession over this Eta.we. Bazar
house a.long with Ga.jju La.I, Ja.wa.la. Pre.sad and Smt.
Sunda.ri on dispossession of Jumna. Pra.sa.d and Devi
Prasad .. It is stated in the application that all these
applicants had " up till now been minors and one of
them is still a. minor and so no question in respect of
time a.rises." This, it is important to note, was the
first application for execution of the partition decree.
A number of objections we.re raised; but the principal objection and the only one with which we a.re
concerned in this a.ppea.l 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 Ja.wa.la. Prasad one of the persons
entitled jointly with these applicants to make an
application for the execution of the decnie could have
,.
3 S.C.R.
SUPREME COURT REPORTS
877
given a discharge of the liability under the decree
z96z
without the concurrence of his minor sons and so time
Sarda PrastJd
ran under s. 7 of the Limitation Act against them also
v.
from the date of the decree.
Lala Jumna Prasad
The Trial Court did not feel satisfied that J a wala
Prasad could give a valid discharge and held accordDas Gupta J.
ingly that the application was within time.
On appeal the High Court held that Jawala Prasad
a.s 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
ho" ever granted a certificate under Art. 133(l)(c) of
the Co.nstitution and on that certificate this appeal
has been ·filed by the applicants for execution.
Two contentions were raised on behalf of the appellants in support of the plea that the High Court erred
in holding that the application for execution was
barred by limitation. First, it is urged that s. 7 of the
Limitation Act does not apply at all to a partition
decree. The second contention is that in any case
Jawala Prasad could not give a valid discharge of the
liability under the decree in view of the provisions of
O. 32 of the Code of Civil Procedure.
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 the 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
878
SUPREME COURT REPORTS
[1961]
z96z
decrees of a similar nature, the decree in favour of
one person against another requires the person against
Sarda Prasad
h
th d
·
d
j' bl
d
th'
v.
w om
e ecree 1s ma e ia e to
o some mg or
Lala Jumna Prasad to refrain from doing something. This liability is in a
sense a debt which the party is in law bound to
Das Gupta J.
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 the Code
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 made."
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 preemption." Ifs. 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
argume"nt raised on behalf of the appellants has no
substance.
Equally untenable is the second argument that the
provisions of 0. 32 of Lhe Code of Civil Procedure
debar the manager of a Hindu joint family from
givmg 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 mi.tt{JrS
of management of the family property. Clearly, theref,1re, when in respect of a transaction of property
poBsession has to be received by the several members
of the family, it is the Karta's 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 not.
3 S.C.R.
SUPREME COURT REPORTS
879
\Vhen any minor member of a joint family is a party
'¢'
to a proceeding in a court he has however to be
Sard• hosod
represented by a next friend appointed by the court
v.
and where somebody other than the managing member LalaJu,.••Prosod
of the family has been appointed a guardian ad litem
there might be difficulty in the way of the managing
Das G•fJI• J.
member giving a discharge on behalf of the minor.
Where however the marn•ging member himself is the
guardian ad litem the only difficulty in the way of
action being taken by him on behalf of a minor is to
the extent as mentioned in 0. 32, rr. 6 and 7. In
Ganesha Row v. Tuljaram Row (1). the Judicial Commit.
tee pointed out t.hat :-
"No doubt a. father or managing member of a
joint Hindu family may, under certain circum.
stances and subject to certain conditions, enter into
agreements which may be binding on the minor
members. of the family. But where a minor is party
to a suit and a. next friend or guardian has been
appointed to look after the rights and interests of
the infant in and concerning the suit, the acts of
such next friend or guardian are
~ubject to the
control of the Court."
In that case their Lordships held that in view of the
provisions of s. 462 of the then Code of Civil Procedure
(which corresponds to 0. 32, r. 7 of the present Civil
Procedure Code) the managing member who had been
appointed a guardian in the suit had no authority to
enter into any compromise or agreement purporting to
bind the minor. This principle has been applied also
to cases where the provisions of O. 32, r. 6 would
apply and so. it has. been held in numerous cases in
India. that the Ka.rta of a Hindu joint family though
guardian in. the suit cannot give a valid discharge in
respect of a claim or a.. decree for " money or other
movable property.'' (Parme8hwar·i Singh v. Ranjit
Singh(') and [,etchrrw:na Chetty v .. Subbiah Chetty (')).
In. the present. case howeve~ there is. no scope for the
application. of either the provisions of O. 32, r. 6 or
O. 32, r .. 7 of the Code of Civil' Procedure. Neither is
(1) (1913) L.R. +o I.A. 132. 13i.
(2j A.l.R. 1939 Pat. 33·
(3) (1924) l.L.R. 47 Mad. 920.
880
SUPREME COURT REPORTS
[1961)
1961
this a. case of. a. receipt of any money or movable
properties.; nor is there any question of entering into
•
Sarda Prasad
an agreement or compromise on behalf of the· minor.
•
LolaJu.:~.PrasaaFor, clearly acceptance of delivery of possession of
-
property in terms of the decree in a pa.rtit ion suit, can
Das Gupta J.
by no stretch of imagination be considered enteri~g
into any" agreement or compromise."
F~brua,.y 2I.
We a.re 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 the 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.
The appeal is accordingly dismissed with costs.
Appe,al dismissed.
HARIDA8 MONDAL
' v.
ANATH NATH MITTRA.
(J. L. KAPUR, M. HII~AYATULLAH and J.C. SHAH, JJ.)
Money lending-Reopening of transactions-Successive suits
by borrower for relief-Maintainability-Res
judicata-Ben~al
Money·lenders Act, r940 . (Ben. X of 1940), s. 36-Code of C•vil
Procedure, r908 (~ct V of r908), s. II, 0. 2, r. 2.
'
,
'The appellant obtained a preliminary and then a final mortgage decree against the respondent and thereafter a personal
decree for the debt remaining due to him after sale of the pro~
pcrty mortgaged: The appellant applied for execution ofthe
personal decree 'and thereupon the respondent sued 'for relief
under s. 36 of the Bengal Money-lenders Act, r940, by reopening
the personal decr~e, In the suit relief for reopening the preliminary .decree and. final decree was not claimed, The personal
decree was reopened in that suit and an instalment decree for a
smaller amount passed instead, which was ultimately' upheld', by
the High Court. The respondent failed to pay the instalments
and the appellant applied for executing· the decree; The respondent then filed another suit under s. 36 of the Act for reopening the preliminary and final decrees.
The Subordinate Judge
dismissed the suit holding that it was barred as res judicata and
the District Judge on appeal affirmed that decision. But the