SRI RAJA D.K. VENKATA LINGAMA NAYANIM BAHADUR VARU (SINCE DECEASED) AND ANR. Vs. RAJAH INUGANTI RAJAGOPALA VENKATA NARASIMHA RAYANIM BAHADUR VARU AND ORS.

JUDGEMENT

(1.) THIS appeal arises out of proceedings in execution of a final decree for sale passed as far back as 3rd May, 1927, for a large sum of money claimed as arrears of maintenance due to a junior member of the family of the Rajah of Kalahasti. The 24th defendant in the suit (O.S. No. 86 of 1916 in the Court of the Subordinate Judge of Chittoor) who is the appellant before us, pleaded that the application filed in the lower Court on the 1st November, 1939 (E.A. No. 379 of 1939) more than 12 years from the date of the decree was barred under the provisions of Section 48 of the Code of Civil Procedure, 1908. The respondent decree -holder claimed exemption under Sub -section (2) of that section on the ground that the appellant had prevented him by fraud from executing the decree. The Court below upheld the claim and ordered execution to proceed. The appeal is directed against that order.

(2.) THE appeal first came on for hearing before Mockett, J., and one of us on 23rd July, 1945, when the case was referred to a Full Bench in view of the conflicting decisions of this and other High Courts as to the scope and meaning of "fraud" as that term was used in Section 48 of the Code of Civil Procedure. Without going into that question, however, the Full Bench remanded the case to the District Judge of Chittoor with directions to require the decree -holder to furnish full particulars of the alleged fraud, and on the evidence called by both sides thereafter to submit his finding to the Division Bench which might then consider whether the case called for a reference to a Full Bench. The directions having been carried out and the learned Judge having considered the evidence and submitted his finding, the case now comes before us for final disposal.

(3.) IN his affidavit of particulars of fraud filed on 1st October, 1945, after remand the respondent set out the history of the execution proceeding detailing the objections raised by the appellant "frivolously and vexatiously" at various stages and charging him with having fraudulently prevented the execution of the decree by such "obstructive tactics". He also submitted that,