Mukerji and Young, JJ.:— This appeal raises a nice question of law. We have, however, no difficulty in deciding it.
The first two defendants executed a simple money bond in favour of the plaintiffs appellants, in consideration of a debt owed by their father, but which had become time-barred at the date of the execution of the bond in suit. The claim failed in the first court, but succeeded in the lower appellate court. The defendant No. 3, who was a minor brother of the other two defendants, and who was not a party to the bond, was exempted from the claim. The learned Subordinate Judge, in decreeing the claim, directed that the amount of the decree should be realized from the two-thirds Share of the joint family property which belonged to the first two defendants.
The plaintiffs have come up in second appeal and it is contended that there should have been a personal decree against the first two defendants as the extenuates of the bond.
Reliance has been placed on section 25 of the Contract Act. It is argued that the defendants Nos. 1 and 2 agreed to pay a time-barred debt and therefore entered into a valid contract with the plaintiffs and as they agreed to pay personally, the personal agreement should have been enforced by the court below.
Section 25(3) runs as follows:—“An agreement made without consideration is void, unless it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.”
The words, “of which the creditor might have enforced payment”, according to the learned counsel for the appellant, would include a debt which is not payable by the executants of the bond themselves. But as we read that sub-section, we think that it is meant to cover only the case of the person who would be liable to pay but for the limitation barring the suit. In this case the bond could be enforced against the sons only to the extent of the joint family property. The sons would not be personally liable at all. That being the case, if the bond in suit did come, as to which we express no opinion, within section 25(3), any agreement as to liability which could not be enforced originally could not be enforced under the new agreement. To make it clear, the sons were liable only to the extent of the family property. If they agreed to pay the father's debt, any agreement that they would pay personally would be without consideration as it would not be within section 25(3).
No authority has been cited on either side. We think that the decree passed by the court below is a just and proper decree and we see no reason to interfere with it, unless some clear authority is produced to induce us to do so. The appeal fails and is hereby dismissed with costs.