The appeal is by the 6th defendant, judgment-debtor, in the suit in which the order under appeal has been passed. The order was passed on an application for execution and it is said that we should set aside the order granting execution on several grounds. It is first argued that as the decree was apparently in favour of a minor, it could not be transferred except with the sanction of the Court and in support of this contention reliance is placed on O. 32, R. 7 of the Civil Procedure Code. That rule refers to an application for the compromise of a suit which has to be sanctioned by the Court before which the suit is pending. It is urged that the transfer of a decree on behalf of a minor stands on the same footing because the rule as framed by this Court contains the words “for taking any other action on behalf a minor”. But reading these words in the context in which they occur, they refer to an action taken in the course of the suit in the nature of a compromise or withdrawal or any agreement of that nature in favour of a minor. But a decree is property and there is no reason why the guardian of a minor should not deal with it and exercise the same powers with respect to it, as he does with respect to the other properties of a minor. He may on proper grounds make an alienation of such property and if the alienation is bad, it will be open to the minor to set it aside on attaining majority. Even a compromise entered into without the sanction of the Court, as required by O. 32, R. 7 of the Civil Procedure Code is only voidable at the instance of the minor. See Virupakshappa v. Shidappa and Basappa(1). Our attention however was drawn to cases reported in Arunachellam Chetty v. Ramariadhan Chetty and Alamelu Achi(2), and Ganesh Row v. Tulja Rama Row(3). But none of these decisions support the proposition put forward on behalf of the judgment-debtor in this case.
The next question we are asked to consider is that of limitation. Even supposing that Art. 182, Cl. (4) Indian Limitation Act 1908 does not apply—though it is difficult to say why it does not, the application for execution in this case was made on 18th January 1918 and must, as pointed out by the learned Judge be taken to be made within three years from the 12th December 1914 when the decree-holder made the application for transmission of the decree from the Bellary District Court to the Original Side of this Court, if the time within which the execution was set aside, i.e, the period from 8th February 1915 to 25th March 1915 be excluded, as we think it should be.
It was suggested that such an order could not have been made as there was no application for execution pending, but that it is not necessary to enable a Court to suspend execution of a decree for it can do so in anticipation of an application for execution. That is a sufficient answer to the question of limitation.
The next point taken before us was that the transfer of the decree to the petitioner who is a pleader was invalid by virtue of Sect. 136 of the Transfer of Property Act (Act IV of 1882) since it is a transfer of an actionable claim which the law prohibits in favour of pleaders and certain functionaries of Court. Decree does not come within the definition of an actionable claim as given in the Transfer of Property Act (IV of 1882) but partakes of the nature of property.
The last point argued before us was that some of the properties had been the subject of a valid family settlement before the attachment was made. But it is not for the judgment-debtor to raise any such question. If the property in fact belonged to sortie other person, it was for that person to raise the objection. We hold that this is not a valid objection.
The appeal is dismissed with costs.
Memorandum of Objections.—The sixth defendant is the son of the 1st defendant in the suit and was brought on record during the pendency of the appeal, after his father's death which took place in December 1911 and the object of this application is to make the 6th defendant account for the assets of his father in his hands. Ex. X is an account of a certain brick kiln business carried on by the 6th defendant's father and after his death for a short time by the 6th defendant himself in order to wind it up and that account shows Rs. 47,000 and odd on the credit side and Rs. 36,000 and odd on the debit side leaving a balance of about Rs. 11,000 to the credit of the 6th defendant's father. The learned District Judge finds that the expenses shown there are not all: the expenses incurred by the 6th defendant's father but are only such amounts as were spent out of the receipts' of the business in carrying out the contract. But besides the items shown on the debit side there were other expenses incurred which in this account are liable to be debited but which are not shown in Ex. X. The learned District Judge has found that the 6th defendant had paid certain amounts in discharge of debts incurred in connection with the business and other items of expenditure similarly incurred and deducting these, the balance Rs. 800 is found to have been left in the hands of the 6th defendant. And as regards this amount, the District Judge accepts the evidence of the 6th defendant himself that it was spent in the treatment of his father during his last illness. We must say that the evidence as to what were the assets which the 6th defendant received and what he did with them is not at all satisfactory. Ex. X. is the only account available but that was regularly kept and admittedly it is not complete. On the other hand the creditor does not seem to have succeeded in showing except as to one item which we shall deal with presently that the finding of the District Judge is wrong.
The item with reference to which we are not satisfied with the finding of the District Judge relates to the cost of a Motor Car which the 6th defendant's father purchased for Rs. 3000 from the Universal Engineering Co., of Bombay. It appears that Rs. 1,000 out of this sum was paid in March 1911. That was before the brick kiln contract was started. The contract was started on the 1st April 1911 and therefore it could not be said that this amount was paid out of the receipts of this business. As regards the balance of the purchase money; that was paid by September 1911 by which time the 6th defendant's father had received moneys on account of the business and we are unable to say that the District Judge is wrong in holding so far as Rs. 2000 of the purchase money is concerned; that it was paid out of the receipts of the brick kiln contract. But we do not find any evidence on which we can hold that the Rs. 1,000 paid in March 1911 also should be charged against the proceeds of the brick kiln business which had not been started at the time.
Then as to a small sum of Rs. 50 the price of a vacant site sold by the 6th defendant's father, the District Judge says that the 6th defendant is not liable because at the time he had not been made a party to the appeal. Even if he had been made a party on that date, that could make no difference if it was part of an estate which came into his hands.
We therefore allow the memorandum of objections with respect to a sum of Rs. 1050, otherwise the order of the District Judge is confirmed. Costs will be paid and received in proportion.
d: Objections allowed.
C. K.Appeal dismissed.