The question for consideration in this appeal is whether the application of 23rd June 1902 was effective for the purpose of keeping alive the decree and preventing the execution thereof being barred by limitation. The application was made by the mother as guardian of the respondent who was described as a minor. It has been found that when the application was made he was a major. The District Judge was of opinion that the application by the mother was nothing more than an irregularity and that the proceedings were only technically defective. There is some evidence that the responder was aware of his mother's proceedings, but there is nothing to show that he constituted her his agent for the purpose of making the application. The question is not whether the proceedings by the mother were void for all purposes, but whether they amounted to an application according to law for a step in aid of execution within the meaning of article 179 in the second schedule to the Limitation Act. In our opinion the application was not according to law for the purposes of article 179. In Taqui Jan v. Obaidulla(1), the Calcutta case on which the learned Judge relied, no question of the law of limitation arose. No doubt the Judges observe “If we were to uphold this decision the result would be, the suit being now barred by limitation, that the plaintiff, because of this error, whether intentional or not, would lose the whole of his cause of action.” It does not follow that because certain proceedings are effective (assuming them to be effective) for the purpose of keeping alive a cause of action, that similar proceedings must be held to be “in accordance with law and therefore effective for the purpose of keeping alive the right to execute a decree. On behalf of the respondent, it was contended, that the application should be treated as the application of the respondent; that it fulfilled the requirements of section 235 of the Code of Civil Procedure, and was therefore in accordance with law since it was verified by the mother and the section did not require that it should be signed by the applicant. On the face of the application it is clear that it was the application of the mother and not that of the respondent. It was also argued that, the Munsif had no jurisdiction to review his own order and that, as he, in the first instance, directed execution to issue, and there was no appeal from this order, no appeal now lies from the order of the District Judge reversing the order of the Munsif made on review. We are of opinion that the Munsif had jurisdiction to review his own order and that, seeing that an application to review had been made to him, an appeal against the original order was unnecessary.
As regards the question of fact involved in this case, the Munsif finds by implication, that the respondent was eighteen years old on 3rd January 1900. The Judge finds that he must have been eighteen on 23rd June 1902. The present application was made on 23rd March 1903. If, therefore, the respondent became a major on some date subsequent to 23rd March 1900 the present application would be within three years of his attaining his majority and therefore in time irrespective of the application made by the mother.
The case must go back to the District Judge for an express finding as to the date on which the respondent attained the age of eighteen. Further evidence may be taken. The finding should be submitted within six weeks; and seven days will be allowed for filing objections.