N.M Rayulu Iyer Naga... v. Chockanarayanan Chet..., Madras High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

A.A.O No. 536 of 1949, against order of Sub-J., Sivaganga, D/- 2-4-1949

Advocates

For the Appellant: C.S. RAMA RAO SAHIB, K.S. Ramabhadra Iyer, Advocates.

Judges

Govinda Menon
Basheer Ahmed Sayeed, JJ.

See more information ...

Smart Summary

Factual and Procedural Background

This opinion concerns an appeal by the plaintiff-decree-holder (the appellant) against an order of the Subordinate Judge holding that execution of a security bond (by E.P. No. 88 of 1947) was barred by limitation under Section 48 of the Civil Procedure Code (CPC). The security bond had been executed by Sattayyappa Chettiar to secure restitution of costs realised in O.S. No. 114 of 1925. The bond made Sattayyappa and the joint family properties of him and his two sons liable if A.S. No. 406 of 1930 was decided against those on whose behalf the bond was executed.

On 14-8-1934 this Court allowed A.S. No. 406 of 1930. The plaintiff thereafter sought enforcement of the security bond by application E.A. No. 750 of 1934 in the Subordinate Court, in which the executant Sattayyappa and his two sons (Arumugha — a major; Sokkanarayanan — a minor) were parties. On 24-10-1938 the Subordinate Judge of Madura found the security bond enforceable and decreed respondents to pay the bond amount. Arumugha appealed (C.M.A. No. 364 of 1939) and this Court on 2-4-1941 allowed Arumugha's appeal insofar as it affected him, stating its decision would govern only the parties before it and not affect rights as against other parties. The Subordinate Judge's enforcement order as against Sattayyappa and Sokkanarayanan remained confirmed.

E.P. No. 88 of 1947 was filed to execute the security bond; the Subordinate Judge later held the petition barred by limitation and further held that execution could not proceed against Sokkanarayanan because he was a major at the time E.P. No. 88 of 1947 was filed. The present appeal challenges those conclusions.

Legal Issues Presented

What is the correct period of limitation (terminus a quo) for enforcement of the undertaking embodied in the security bond — should limitation run from this Court's decision on A.S. No. 406 of 1930 dated 14-8-1934 or from the Subordinate Judge's order of 24-10-1938 which made the security bond enforceable in execution?
Whether execution proceedings (and consequential sale of property) are void or not binding on an individual who was a minor at the commencement of the execution proceedings but had become a major by the time a particular execution petition (E.P. No. 88 of 1947) was inaugurated — i.e., the effect of minority at inception and subsequent attainment of majority on the binding nature of execution orders.

Arguments of the Parties

Appellant's Arguments

The appellant sought enforcement of the security bond and treated the enforceability as arising from the Subordinate Judge's order (E.A. No. 750 of 1934 / order dated 24-10-1938) that made the bond executable in execution without a fresh suit. Implicit in the decision under review is the appellant's position that limitation should be measured from the date the bond became enforceable in execution (24-10-1938) rather than from the earlier appellate decision in A.S. No. 406 of 1930 (14-8-1934).

Respondent's Arguments

Respondent Sokkanarayanan (through counsel Mr. K. S. Rambhadra Aiyar) relied on precedent (Tanguaturi Jagannadham v. Seshagiri Rao, AIR 1917 Mad 42) to contend that a sale held without notice to a judgment-debtor who was, in fact, a major but wrongly described as a minor was liable to be set aside — i.e., that if Sokkanarayanan was a major by the time of the execution steps, proceedings could be void as regards him.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sanyasi v. Verran Naidu, AIR 1928 Mad. 294	Part of a line of Madras decisions establishing that where a party is a minor at the inception of proceedings and becomes a major later, a decree passed on the footing that he was a minor is binding on the erstwhile minor unless he had been declared a major at the time of decree/final order.	The Court treated this case as supporting the principle that execution proceedings begun while a person was a minor remain binding on him even if he attains majority later, absent special circumstances (e.g., fraud).
Sundaram Reddi v. Pattabhiramireddi, AIR 1918 Mad. 545	One of the long line of cases cited for the principle on the binding effect of proceedings initiated during minority.	Cited by the Court as part of the settled line of authority supporting the binding nature of proceedings begun during minority.
Venkatasomeswararao v. Lakshmanaswami, AIR 1929 Mad. 213	Another authority for the same principle regarding proceedings commenced during minority.	Relied on by the Court as part of the consistent precedent that proceedings instituted while a person is a minor bind the person later attaining majority.
Murugappa Mudaliar v. Desappa Nayanim, AIR 1950 Mad. 314	Discussed a contrasting line of decisions and reviewed the decision in AIR 1917 Mad 42; contains observations by the Chief Justice distinguishing cases where a person was always a major but wrongly described as minor from cases where he was a minor at commencement and attained majority later.	The Court relied on the Chief Justice's observations in this case to distinguish the present facts from those in which proceedings were without notice to a true-major wrongly described as a minor. It applied Murugappa Mudaliar to hold the present proceedings were not vitiated.
Tanguaturi Jagannadham v. Seshagiri Rao, AIR 1917 Mad. 42	Cited for the proposition that proceedings and a sale might not bind a person who was a major but throughout wrongly treated as a minor (i.e., where notice as a major never went to him).	The respondent relied on this case; the Court distinguished it as addressing a different factual situation (a true-major wrongly described as a minor throughout), and found it inapposite to the present facts where the party was a minor at commencement.
Seshagirirao v. Tangatun Jagannadham, AIR 1917 Mad. 318	Related earlier decision considered in the line of cases concerning the binding effect of proceedings where party status (minor/major) was wrongly recorded.	Referenced in the dialogue of precedents; the Court relied on later commentary (Murugappa Mudaliar) distinguishing these older rulings from the facts at hand.
Vyravan Chettiar v. Rayalu Ayyar & Co., AIR 1951 Mad. 844	Cited concerning the binding effect (res judicata) of an earlier order in execution proceedings by the same court/judge.	The Court invoked this case to support the position that an earlier order of the same Subordinate Judge (dated 8-4-1948) holding that execution could proceed against Sokkanarayanan is binding as res judicata in subsequent execution proceedings.

Court's Reasoning and Analysis

The Court conducted a twofold analysis: first on limitation under Section 48 CPC; second on the legal effect of a party's change of status from minor to major during execution proceedings.

1. Limitation (terminus a quo):

The Subordinate Judge treated 14-8-1934 (this Court's decision in A.S. No. 406 of 1930) as the commencement date for limitation, reasoning that the decree in that appeal made the security bond enforceable from that date.
The appellate Court rejected that view, explaining that what the plaintiff sought to enforce in E.P. No. 88 of 1947 was not the rights obtained in O.S. No. 114 of 1925 or its appeal, but the security bond itself — which became enforceable in execution by the Subordinate Judge's order of 24-10-1938.
The Court therefore held the cause of action for enforcing the bond arose in favour of the plaintiff only on 24-10-1938 (the date the Subordinate Judge declared the bond enforceable in execution against Sattayyappa and Sokkanarayanan). Because E.P. No. 88 of 1947 was filed within twelve years of that date, Section 48 CPC did not bar the petition.
Accordingly, the learned Subordinate Judge erred in treating 14-8-1934 as the terminus a quo for limitation.

2. Effect of minority/majority on binding nature of execution proceedings:

The Subordinate Judge held that since Sokkanarayanan was a major at the time E.P. No. 88 of 1947 was filed, execution orders should be treated as null and void as regards him because he was not properly dealt with as a major.
The appellate Court examined the authorities and accepted the settled line of Madras decisions that where a party is a minor at the inception of a proceeding and becomes a major during the proceedings, an order or decree passed on the footing that he was a minor is generally binding on the erstwhile minor (unless he had been declared a major at the time of the decree/final order or unless fraud is shown).
The Court distinguished the line of authority relied upon by the respondent (AIR 1917 Mad 42 / AIR 1917 Mad 318) as concerned with cases where a person was always a major but was throughout wrongly described as a minor so that notice as a major never went to him — a factual situation unlike the present one.
Applying the reasoning in Murugappa Mudaliar v. Desappa Nayanim (AIR 1950 Mad 314) — in particular the Chief Justice's observations — the Court concluded that because Sokkanarayanan was admittedly a minor at the time (24-10-1938) when the security bond was declared executable, the subsequent fact of his attaining majority did not render the earlier execution proceedings void as to him.
The Court further held that the proceedings up to the time Sokkanarayanan applied for postponement of sale were binding on him unless he could, by separate proceedings, establish fraud; and that an earlier order in the same E.P. (dated 8-4-1948) by the same Subordinate Judge holding execution could proceed was binding upon him as res judicata (citing Vyravan Chettiar v. Rayalu Ayyar & Co.).
On both points (limitation and effect of minority/majority), the appellate Court found error in the Subordinate Judge's conclusions and reversed the lower court's rulings.

Holding and Implications

Holding:

The appeal is allowed; the order of the Subordinate Judge is set aside and E.P. No. 88 of 1947 is remanded to the Subordinate Judge of Sivaganga for disposal on the merits.

Direct implications for the parties:

The appellate Court held that the execution petition (E.P. No. 88 of 1947) is not barred by Section 48 CPC because the cause of action for enforcing the security bond arose on 24-10-1938 (the Subordinate Judge's order declaring the bond enforceable), and the petition was filed within twelve years of that date.
The Court held that the execution proceedings up to the point of Sokkanarayanan's application for postponement of sale are binding on him notwithstanding that he became a major during the continuance of the proceedings; the Subordinate Judge's view that execution could not proceed against Sokkanarayanan was incorrect.
The appellant is entitled to the costs of the appeal.

Broader precedent: The opinion applies and interprets existing Madras precedents about the effect of minority/majority in execution proceedings and about when a cause of action to enforce a security bond accrues; it does not purport to establish a novel legal principle beyond the application of those precedents to the facts of this case.

Disposition: Case remanded for disposal on merits; appellant awarded costs.

Show full summary ...

N.M Rayulu Iyer Nagasami Iyer And Co. Through One Of Its Partners N.M.R Venkatakrishna Iyer v. Chockanarayanan Chettiar .

Govinda Menon, J.:— In our opinion this appeal has to be allowed and E.P No. 88 of 1947 remanded to the Subordinate Judge of Sivaganga for disposal on the merits. The learned Subordinate Judge has-held that the execution is barred on the ground that more than twelve years have elapsed from 14-8-1934 when this Court allowed A.S No. 406 of 1930, and such being the case E.P No. 88 of 1947 is barred under Section 48 of the CPC.

2. What happened was that for the restitution of costs realised by a decree-holder in O.S No. 114 of 1925 on the file of the Sub-Court, Madurai one Sattayyappa Chettiar executed a security bond in favour of the Court. In that security bond Sattayappa Chettiar stated that he himself personally and the joint family properties belonging to him and his two sons would be made liable in case the decision in A.S No. 406 of 1930 went against the persons on whose behalf the security bond was executed. On 14-8-1934, this Court in A.S No. 406 of 1930 allowed the appeal and thereby made the security bond enforceable. Thereafter by E.A No. 750 of 1934 the plaintiff-decree-holder, who is the appellant in this appeal, tried to enforce that security bond. To that application he impleaded as respondent 1, one minor Shanmugham Chettiar through guardian Shanmugham Chettiar, and respondents 2, 3 and 4 respectively. Sattayyappa Chettiar, the executant of this security bond and his two sons, Arumugha Chettiar and minor Sokkanarayanan. Arumugham Chettiar was a major and Sokkanarayanan was admittedly a minor at that time. On 24-10-1938 the Subordinate Judge of Madura found that the security bond can be enforced in execution, and decreed that respondents 1 to 4 in that application of whom respondents 2 to 4 are the persons with whom we are now concerned should pay the principal amount of Rs. 2253-3-1 to the plaintiff-petitioner with interest that is provided in the security bond. That is, by means of this order the agreement of the undertaking given in the security bond was made enforceable, as if a decree had been passed thereupon. Against that order Arumugham Chettiar filed an appeal to this Court, C.M.A No. 364 of 1939 in which the only respondent was the plaintiff-petitioner Rayalu Iyer, Nagaswami Iyer and Co. The father Sattayyappa Chettiar and the minor son Sokkanarayanan Chettiar were not made parties to that appeal. On 2-4-1941 this Court consisting of Wadsworth and Patanjali Sastri JJ. allowed the appeal of Arumugham Chettiar and set aside the order of the lower Court directing that the joint family properties of Sattayyappa Chettiar and his two sons can be proceeded against, and held that such an order would not be binding on the share of Arumugham Chettiar or on him personally. But in their order the learned Judges have held as follows:

“In this view it is unnecessary to go into the other questions that have been argued before us. We wish only to add that this decision will govern only the parties now before us and is not intended to affect the rights of the respondent as against the other parties to the proceeding in the Court below.”

3. Though Sattayyappa Chettiar and Sokkanarayanan were not made parties to that appeal, still the decision arrived at by the Subordinate Judge in E.A No. 750 of 1934 as against Sattayyappa Chettiar and minor Sokkanarayanan was confirmed.

4. Now the question is what is the period of limitation for the execution of the undertaking given in the security bond. The learned Subordinate Judge in the Court below is of opinion that since the decree of this Court in A.S No. 406 of 1930 was passed on 14-8-1934 that date should be considered as the starting point of limitation from which the period will run for the enforceability of the security bond. But the learned Subordinate Judge forgets the fact that it is not any right obtained by the decree in O.S No. 114 of 1925 or its appeal A.S No. 406 of 1930 that is now sought for by the plaintiff. What the plaintiff seeks is to enforce the security bond, the enforcement of which became effective only as a result of the Subordinate Judge deciding that it can be enforced as such without a fresh suit. This Court held as against Arumugham Chettiar that the security bond cannot be enforced in execution. But this Court confirmed the decision of the Subordinate Judge regarding the enforceability of the security bond against Sattayyappa Chettiar and his minor son Sokkanarayanan Chettiar; and that order was made on 24-10-1938. More than 12 years have not elapsed since that date when E.P No. 88 of 1947 was filed. Therefore in our opinion Section 48 of the CPC will not be a bar against the enforceability of the security bond. The cause of action for enforcing that arose in favour of the plaintiff only by the order of the Subordinate Judge dated 24-10-1938. Therefore the learned Subordinate Judge is in error in thinking that the terminus a quo started from 14-8-1934, the date of the decision in A.S No. 406 of 1930, when this Court reversed the decision of the lower Court in O.S No. 114 of 1925. We are, therefore of opinion that the execution petition is not barred by limitation.

5. The next point decided against the appellant by the lower Court is that when E.P No. 88 of 1947 was filed by the plaintiff petitioner for execution of the security bond, Sokkanarayanan Chettiar, the contesting respondent, was a major, and therefore the proceedings taken with regard to the sale of properties consequent upon the orders in E.P No. 88 of 1947 would not be binding on him & such being the case no property could be sold in execution. The learned Judge did not rely upon any decision in support of the view taken by him, but he was of opinion that at the time when the orders in execution were made in E.P No. 88 of 1947 Sokkanarayanan had become a major, and such orders should be treated as null and void so far as he is concerned, and would not have any legal effect. It is settled in this Court by a long line of cases that if, at the inception of a certain proceeding or at the time a suit is instituted a party is a minor represented by a guardian, but during the course of the proceeding, or the suit he becomes a major and a decree is passed on the footing that he was only a minor, such a proceeding would be binding on the erstwhile minor, if he had not been declared a major at the time of the decree or a final order. The decisions in support of this proposition are ‘Sanyasi v. Verran Naidu’ AIR 1928 Mad. 294 (A), ‘Sundaram Reddi v. Pattabhiramireddi’ AIR 1918 Mad 545 (B), — ‘Venkatasomeswararao v. Lakshmanaswami’, AIR 1929 Mad 213 (FB) (C) ‘Murugappa Mudaliar v. Desappa Nayanim’ AIR 1950 Mad. 314 (D). As against these decisions Mr. K.S Rambhadra Aiyar for the respondent Sokkanarayanan invites car attention to a decision in — ‘Tanguaturi Jagannadham v. Seshagiri Rao’, AIR 1917 Mad 42 (E), where the learned Judges reviewing the decision reported in — ‘Seshagirirao v. Tangatun Jagannadham’, AIR 1917 Mad 318 (F) came to the conclusion that the proceedings therein would not be binding on the erstwhile minor. This case, namely, ‘AIR 1917 Mad 42 (E) came up for consideration in the latest case ‘AIR 1950 Mad 314 (D). The learned Chief Justice in delivering the judgment adverted to this decision at page 316 & observed as follows:

“Learned counsel for the contesting respondents was unable to point out any such specific provision in the Code. He relied on the ruling in ‘AIR 1917 Mad 318 (F), in support of his contention that a sale held without notice to one of the judgment-debtors who was a major but who had been wrongly described as a minor was liable to be set aside at the instance of that judgment-debtor. In that case the judgment-debtor was wrongly treated as a minor throughout the execution proceedings from their very commencement. Actually he had attained majority even before the decree though he was a minor at the time of the institution of the suit. That was not a case in which a judgment-debtor was a minor at the time of the commencement of the execution proceedings but had attained majority during the continuance of such proceedings. That case can be likened to a suit against a major described wrongly as a minor. Strictly speaking, such a person cannot be deemed in law to have been a party at all to the suit. On the same analogy, if a person, who was a major at the time of the commencement of the execution proceedings, was throughout the proceedings wrongly described as a minor and notice never went to him as a major, the result would be that the entire proceedings were without notice to him. A sale held in the course of such execution proceedings certainly cannot bind him. That, however, is not the case here.”

6. Now in our opinion these observations of the learned Chief Justice apply appositely to the present case. At the time the security bond was declared as executable against Satayyappa Chettiar and Sokkanarayanan by the Subordinate Judge on 24-10-1938, admittedly Sokkanarayanan was a minor. There is no dispute about that. Later on it is seen that E.P No. 87 of 1947 was filed for the relief of enforcing the security bond.

7. That for some reason or other became infructuous. Another petition E.P No. 13 of 1944 was also filed. At the time all these proceedings took place Sokkanarayanan was admittedly a minor. Therefore at the commencement of the execution proceedings Sokkanarayanan was a minor and when E.P No. 88 of 1947 which was only a continuation of the earlier proceedings, was inaugurated, even if Sokkanarayanan had become a major by that time, it should be taken that such proceedings cannot be declared null and void at the very inception. Applying the observations of the learned Chief Justice in ‘AIR 1950 Mad 314 (D)’, to this case, if on 24-10-1938 Sokkanarayanan had become a major, but had been proceeded against as a minor, then probably the decision in — ‘AIR 1917 Mad 42 (E)’, will apply. We are therefore of the opinion following the long course of decisions of this Court that the proceedings upto time at which Sokkanarayanan came to file the application for postponing the sale are binding on him unless he can by separate proceedings say that there was fraud practised upon him. It seems to us, therefore, that the learned Subordinate Judge was wrong in this also.

8. Another way of looking at the question is that on a previous occasion in the same E.P No. 88 of 1947 on 8-4-1948 the same Subordinate Judge who has now held that the execution cannot proceed against Sokkanarayanan has negatived his contention & held that the execution can be proceeded against him. This order must in the natural course of events be binding on Sokkanarayanan, as res judicata, in execution proceedings. For this purpose if authority is required we may refer to the reasoning in — ‘Vyravan Chettiar v. Rayalu Ayyar & Co.’ AIR 1951 Mad 844 at p. 850 (G). For all these reasons we cannot subscribe to the view put forward by the learned Subordinate Judge that the petition is barred by limitation. We therefore set aside the order of the Subordinate Judge and remand the application to the lower Court for disposal on the merits. The appellant will be entitled to the costs of this appeal.

B/K.S.B

9. Case remanded.

N.M Rayulu Iyer Naga... v. Chockanarayanan Chet...