ARIKAT ABDUL KADER Vs. MALLISSERI KRISHNAN NAMBUDIRIPAD

JUDGEMENT

(1.) This appeal by the legal representatives of the deceased judgment debtor is directed against the judgment of a learned Single Judge of this court in S. A. 352 of 1958, by which it was held, that execution petition 401 of 1951 dated the 4th August, 1951, in O. S. 243 of 1929 filed by the respondents decree holders was within time. The decree sought to be executed was passed on the 28th September, 1931, and the previous execution petition which was within time was E. P. 701 of 1943 dated the 28th September, 1943. In connection with that execution petition an execution application, E. A. 1209 of 1944, was made on the 28th November, 1944, for proceeding against additional immovable properties by attachment and sale. That application came to be dismissed on the 8th March, 1945, and E. P. 701 of 1943 was closed on the 4th August, 1948. The present execution petition was filed within the period of three years of the final order on the previous execution petition, as provided by Art.182 of the Indian Limitation Act, but well beyond the period of twelve years computed from the date of the decree as provided by S.48(1)(a) of the Civil Procedure Code. The respondents relied on S.48(2)(a). C. P. C. for maintaining, that the execution petition is not barred by S.48(1)(a), C. P. C. The two lower courts have accepted the plea under S.48(2)(a), C. P. C., by finding fraud on the part of the deceased judgment debtor, in that he had been evading arrest in execution of the decree quite a number of times. This view was affirmed by the learned Single Judge in second appeal. This appeal is by special leave.

(2.) Before us, learned counsel for the appellants contended, that the fraud found, having been committed more than twelve years after the date of the decree, S.48(2)(a) is not applicable. That provision is as follows:-

(3.) It was next argued, that even if the deceased judgment debtor had practised fraud by evading arrest as found, the execution of the decree had not been prevented in consequence. The fraud as found was that although the respondents made eighteen or twenty two attempts to have the judgment debtor arrested, the latter had been successfully evading such attempts. His case that he was not evading but had been living outside the jurisdiction of the court, was repelled. We feel no doubt, that such wilful evasion of process of court amounting to fraud, did prevent the execution of the decree personally against the judgment debtor, so as to attract S.48(2)(a). It was suggested that the properties now sought to be attached by the respondents as belonging to the judgment debtor, could have been proceeded against in the previous execution proceedings. The contest between the parties in execution, has now been disposed of by the lower courts on the preliminary point of limitation, and freedom has been reserved for the appellants to raise their objections, at a later stage, to execution by way of attachment and sale of those properties, and learned counsel for the appellants was not in a position to state before us, that the appellants have or had had, no objections to these properties being proceeded against. Even granting that upon the evasion of arrest, the respondents could have proceeded to execute the decree against properties by attachment and sale, we are not prepared to hold for that reason alone, that the respondents were not prevented from executing, the decree. E. P. 701 of 1943 was for the attachment and sale of certain immovable properties and for the arrest of the judgment debtor. Some properties were attached and sold and some amount was realised. The fraud found was in relation to the relief by arrest of judgment debtor. We do not understand the Section to require, that there should, be a total prevention of execution of the decree for all time and in every way; in that case, there might in several cases hardly arise the need to execute the decree. In Yeswant Deorap Deshmukh v. Walchand Ramchand, Kothari AIR 1951 SC 16 decided by the Supreme Court, the fraud found consisted in the screening of "Prabhat", one item of property which belonged to the judgment debtor, and this was held to prevent the execution of the decree, although as held, there were other properties which could have been proceeded against; the applicability of S.48(2)(a) was not held to turn upon the existence or otherwise of other properties, although in applying S.18 of the Limitation Act, that point was quite pertinent and was considered. In Sri Raja Dk. Venkata Lingama Nayanim Bahadur Varu v. Rajah Isuganti Rajagopala Venkata Narasimha Nayanim Bahadur Varu AIR 1947 Mad. 216 Patanjali Sastri, J., as he then was stated the rule in these terms: