MATHEW OOMMUMMEN Vs. KOCHUMATHEN VAIDYAN

JUDGEMENT

(1.) THE 3rd defendant in O. S. No. 369 of 1094 of the court of the District Munsiff, Karunagapally, is the appellant in this second appeal. He challenges the correctness of the decision of the courts below to the effect that the execution petition dated 28-10-1121 is not barred by limitation in view of S. 48 (2) (a) of the Code of Civil Procedure: "nothing in this section shall be deemed - (a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application. "

(2.) THE 3rd defendant raised a plea of discharge by a petition dated 26-10-1102. THE petition was dismissed by the Munsiff's Court on 2-1-1104. Against the order of dismissal there was an appeal and also a second appeal. THE second appeal was dismissed on 3-6-1106.

(3.) IN A. I. R. 1950 T-C 80 the court said: "the defendant has been making systematic attempt to delay execution by frivolous and dishonest objections. Such conduct amounts to fraud under S. 41, cl. (2) of C. P. C and the period during which such false objections were pending has to be excluded in computing the period of limitation. " S. 41 of the Travancore Code of Civil Procedure, 1100, corresponds to S. 48 of the INdian Code of Civil Procedure, 1908. What the section contemplates is a fresh starting point of limitation and not the exclusion of any period. As pointed out by Sankarasubba Aiyar, J. , in 34 T. L. J. 425: "s. 41 does not contemplate a deduction of any particular period from the prescribed period of 12 years. What the section states is that where force or fraud is proved, that gives a fresh starting point of limitation under sub-section (2 ). The point is covered by authority. IN I. L. R 34 All. 20 it was held that upon a correct interpretation of Clause. 2 of S. 48 C. P. C. 1908, the effect of the proviso embodied in that clause is that the bar to execution created by the first clause of the same section is removed for a period of 12 years from any date on which the judgment-debtor has by fraud prevented the execution of the decree'. The same opinion has been taken in Venkayya v. Raghava 22 mad. 320,8 I. C. 805 and 54 I. C. 279" That such is the position is not disputed before us and is clear from A. I. R. 1951 S. C. 16 Yeshwant v. Walchand wherein their Lordships said: "we have here definite findings of both the Courts below that there was fraud preventing the execution of the decree within the meaning of S. 48 Civil P. C. The appellant thus escapes the bar of the 12 years' period and he has a fresh starting point of limitation from the date of the fraud for S. 48 C. P. C. IN other words, the decree-holder has another 12 years within which he cap execute his decree".