AYYANPERUMAL PILLAI Vs. OOMMEN

JUDGEMENT

(1.) The judgment debtor is the appellant in the second appeal. His contention that the execution petition No. 522 of the 1124 dated 12.12.1124 cannot be proceeded with on account of the 12 years bar under S.48(1) of the Code of Civil Procedure was repelled by the courts below on the ground that the decree holder was prevented by the fraud of the judgment debtor from executing the decree within the meaning of S.48(2) of the Code of Civil Procedure. The fraud is said to consist in the judgment debtor having pleaded discharge of the decree by payment which plea was ultimately found against him. The plea was raised in connection with E.P. 309/1122 dated 24.4.1122 and it was ultimately disposed of by the District Court on 6.5.1124. Thereafter, the case was posted to 17.8.1124 for process. Process fee not having been paid the case was further adjourned to 14.10.1124 for disposal. Even on that day nothing having been done by the decree holder the execution form was dismissed.

(2.) A plea of discharge of the decree amount falsely raised and false to the knowledge of the decree holder cannot by itself in our view amount to fraud within the meaning of S.48(2) of the Code of Civil Procedure. If authority be needed for this proposition reference may be made to AIR 1948 Nagpur 189. The plea in this case was of payment into the hands of the decree holder himself. Further, a decree holder should be vigilant in the matter of execution should he claim the benefit of S.48(2) of the Code. In this case from the facts already stated it is clear that he was far from being diligent in the execution. His petition for execution which was well within time was dismissed for his default. We are therefore clear that the execution petition dated 12.12.1124, E.P. No. 522 of 1124, cannot be proceeded with as a fresh execution petition which is barred by time, under S.48(1) of the Code of Civil Procedure.

(3.) The second appeal is, therefore, allowed. In the special circumstances of this case we make no order for costs.