YARLAGADDA VENKANNA Vs. RAMINENI KOTAYYA

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings following a decree passed dated 3rd March, 1932, for Rs. 2,150 being damages due from the judgment -debtor for breach of contract. A number of execution petitions were filed, the last one being disposed of on 17th December, 1943. It was dismissed on failure of the decree -holder to file certain papers. The execution petition out of which this appeal arises was filed on 22nd April, 1944, and was therefore outside the period of twelve years provided by Section 48 of the Civil Procedure Code although within three years from the date of disposal of the execution petition above -mentioned. The District Munsiff considering these facts found that the present execution petition could not be considered to be a continuation of the 1943 petition which had been plainly dismissed for default, and that, as it was outside the period of twelve years, it was time barred. He therefore dismissed it.

(2.) ON appeal the Subordinate Judge allowed evidence to be given of fraud in the sense of Section 48(2)(a) on behalf of the decree -holder. He felt entitled to do so on the authority of Ramanathan Chettiar v. Mohideen Sahib, I.L.R.(1822) All. 319, where a Bench decided that evidence of fraud could be received and the plea taken even on appeal although it had not been specifically raised in the lower Court. On this authority therefore he allowed the appeal, held that an enquiry should be made into with regard to the allegations of fraud and to ether matters which could be raised, and ordered the execution petition to be restored and disposed of in the light of the observations.

(3.) IT is true as Mulla points out at page 600 of his commentary on the Code of Civil Procedure: