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IN THE HIGH COURT OF MADRAS
Lakshmana Rao, J.
Delhi Venkatarama Doss Pantulu
Versus
Delhi Bheema Rao
Decided On : 21.03.1933
Limitation - Execution of Decree - Valid Discharge by Next Friend - Benefit of Section 7, Lim. Act
Fact of the Case:
The appeal arises from an application for execution of a decree in favor of an insane person and his elder brother, who acted as his next friend. The question is whether the application is barred by limitation.
Finding of the Court:
The court found that the prior application by the wife of the insane respondent for removal of the next friend and permission to execute the decree on behalf of her husband cannot be deemed as an application for execution in accordance with law. The original next friend continued to represent the respondent, and a batta memo filed in such an application cannot furnish a fresh starting point of limitation. The court held that the respondent is not entitled to the benefit of Section 7, Lim. Act, and the application is barred by limitation.
Issues: The main issue was whether the application for execution of the decree was barred by limitation, and whether the respondent was entitled to the benefit of Section 7, Lim. Act.
Ratio Decidendi: The court's decision was influenced by the interpretation of whether the next friend could give a valid discharge without the concurrence of the respondent, and whether the respondent was entitled to the benefit of Section 7, Lim. Act.
Final Decision: The decision of the lower courts was set aside, and the execution petition was dismissed with costs throughout.
Lakshmana Rao, J.
1. This appeal arises out of an application for execution of a decree in favour of the respondent, an insane person, and his elder brother, who acted as his next friend as well, and the sola Question for determination is whether the application is barred by limitation The prior application by the wife of the insane respondent for removal of the next friend and permission to execute the decree on behalf of her husband cannot be deemed to be an application for execution in accordance with law within the meaning of Article 182, Lim. Act, nor was it pressed finally. The original next friend continued to represent the respondent and a batta memo filed in such an application can hardly furnish a fresh starting point o limitation. The question thus depends upon whether the respondent is entitled to the benefit o Section 7, Lim. Act, and whether or not by reason of the decree being on a joint promissory note in favour of the brothers, and the next friend being the elder brother, he could give a valid discharge without the concurrence of the respondent; the decree itself empowers the elder brother to recover the entire amount on furnishing security for the half-share of the respondent. He could thus give a valid discharge without the concurrence of the respondent, as held in Murlidhar v. Shivaram A.I.R. 1929 Bom. 382, and the person under disability is not in such cases entitled to the benefit of Section 7, Lim. Act. It follows therefore that the application is barred by limitation and the decision of the lower Courts cannot be upheld. It is therefore set aside and the execution petition will stand dismissed with costs throughout.
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