AYYAVU ALIAS SYED MUHAMAD ROWTHER Vs. ARUARUSOMASOMASUNDARAM CHETTIAR REPRESENTED BY HIS AGENT MAYANDI CHETTIAR

JUDGEMENT

(1.) There can be no doubt, upon the facts as found by the lower Court, that the judgment-debtor, appellant before us, has been evading arrest for a long time. No less than 6 warrants were taken out for his arrest, and there is no difficulty in coming to the conclusion, as the lower Court has done, that he has been willfully evading arrest in order to avoid payment of the decree-amount.

(2.) According to the rulings of this Court and also of the Allahabad High Court, those fasts would amount to fraud within the meaning of Section 48 of the Civil Procedure, Code, that if, willful evasion of arrest under warrants taken out by the judgment-creditor, is fraudulent prevention of the execution of the decree, within the meaning of Section 48(2) of the Civil Procedure Code. It is not necessary for the judgment-creditor to prove by positive evidence that, but for the conduct of the judgment-debtor, he would have realised the decree. The law on the subject was first laid down in Annamalai Goundan v. Rangasami Chetti 6 M. 365 : 2 Ind. Dec. (N.S.) 534, although in that case there were other fraudulent acts as well on the part of the judgment-debtor. This ruling has been followed in Abdul Khadir v. Ajiyur Ahammad 12 Ind. Cas. 679 : 35 M. 670 : (1911) 2 M.W.N. 434 : 10 M.L.T. 413 : 22 M.L.J. 35, and Nathuram Sivagi v. Krishna Kommolthy 18 Ind. Cas. 1008 : 24 M.L.J. 270 : (1913) M.W.N. 182 : 13 M.L.T. 226. The same view of the law is taken in the Allahabad High Court in Mohson Ali v. Masoom Ali 11 Ind. Cas. 672 : 34 A. 20 : 8 A.L.J. 1020. There is no doubt a dictum of Shephard, J., in Seshachalam Chetti v. Rajam Chetty 8 M.L.J. 203, to the contrary. But it does not appear that the authorities on the point were brought to the notice of the learned Judge. Following the decisions mentioned above, we must hold that there was fraud in the sense of Section 43 of the Civil Procedure Code so as to give a fresh starting period of limitation. The appeal must be dismissed with costs. Odgers, J.

(3.) I agree, and I would only add a word as to the case in Seshachalam Chetty v. Rajam Chetty 8 M.L.J. 203, sited by the learned Vakil for the appellant. It was a case before Mr. Justine Shephard and I think it is important to notice that, as I understand the case, there was no evidence of fraud and that the decision turned on that finding. In this case I agree with my learned brother because there is ample evidence of fraud within the meaning of Section 48 of the Civil Procedure Code. It is quite clear to my mind that the case in Seshachalam Chetty v. Rajam Chetty 8 M.L.J. 203, can have no bearing on the point before us. I also agree as to the effect of the Madras and Allahabad decisions cited before us.