RAGHUNATH PROSAD Vs. KASHI PROSAD

JUDGEMENT

(1.) This appeal is directed against an order by which the Court below has allowed the execution to proceed on the basis of a decree for money made on the 18th August, 1897 against three persons by name Ram Prosad, Thakur Prosad and Roghunath Prosad. Ram Prosad died on the 1st April 1903. An application was made on the 1st September 1910 and was met at once with the objection that no order for execution could be made on the basis thereof under Section 43 of the Code of Civil Procedure of 1908. The Subordinate Judge has overruled the objection and has held that the case is covered by Sub-section (2) Clause (a) of Section 48. The judgment debtor has now appealed to this Court and on his behalf it has been argued that the view taken by the Sub-ordinate Judge is manifestly erroneous.

(2.) Section 48 provides that where an application to execute a decree, not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from one of two dates, namely, first, the date of the decree sought to be executed, and secondly, the date of default in making payment when the decree or any subsequent, order directs any payment of money to be made at a certain date or at, recurring periods. Sub-section (2) lays down that nothing in the Section shall be deemed to preclude the Court from ordering the execution of a decree upon an application presented after the exepiration of the term of twelve years when 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. In view of the date of the decree and the date of the present application for execution which, it is not suggested, is in continuation of any previous application, it is manifest, that the objection under Section 48 prima facie is well ft under. In the Court below the decree-holders attempted to bring the case within Clause (a) of Sub-section (2) and the Subordinate Judge has held that the decree holders were prevented by fraud from executing the decree at some time within twelve years immediately before the date of present application. He has relied upon there circumstances in support of his view that there was fraud on the part of the judgment-debtors of the description mentioned in the section. He has pointed out, in the first place, that after the properties of the judgment-debtors have been sold in execution of this very decree on the 18th June 1898, they took objection to the validity of the sale under Sections 244 and 311 of the Code of Civil Procedure of 1882. The objection was disallowed on the 4th April 1399 and an appeal was preferred to this Court but was ultimately dismissed on the 22nd February 1901. The Subordinate Judge appears to have thought that as the objection of the judgment-debtors to the validity of the sale ultimately proved unsuccessful, their conduct must be deemed fraudulent. The second circumstance upon which the Subordinate Judge relies, is the fact of the institution of a suit by one Makunda Bibi who claimed title to the property on the foot of a mortgage, dated the 27th January 1897. The suit instituted by her ultimately proved unsuccessful and was dismissed on the 17th May 1502. The Subordinate Judge is of opinion that this suit was instituted by Mukunda Bibi at the instance of the judgment-debtors who had created in her favour a fictitious mortgage. The third circumstance upon which the Subordinate Judge relies is the institution of a suit against one Radba Krishna in respect of a house which was sold in August 1903. Afrer the decree-holder had purchased this property Radha Kissen preferred a claim, which was allowed on the 5th September 1909. The decree holder as purchaser instituted a suit for declaration of title which was decreed on the 15th November 1903. An appeal preferred against that decree was dismissed on the 17th May 1907.

(3.) In our opinion, none of the three circumstances upon which the Subordinate Judge has relied in support of his view is sufficient to show that there was fraud on the part of the judgment-debtors within the meaning of Section 48, Code of Civil Procedure. It is worthy of rote, in the first place, that the objection which was taken by the judgment-debtors was to the validity of an execution sale or of the title acquired by the decree-bolder as purchaser. In other words, the decree-holder had to face an objection by the judgment-debtors not in his character as a decree-holder but in his character as an execution purchaser. In the second place, it is obvious that the objection, whether groundless or well-founded, could not stand in the way of further execution of the decree. There was nothing to prevent the decree-holder fro n proceeding with further execution daring the pendancy of the investingation into the validity of the objection. Indeed the history of the litigation shows that the decree-holder did proceed to execute the decree notwithstanding the processings for inquiry into the objections mentioned. Section 43 requires not only that there should be fraud on the part of the judgment-debtor but also that the fraud should be of such a character as to prevent the decree-holder from proceeding with execution of the decree; that this is essential is shown by the decision in Seshachalam Chetti v. Rajam Chetty 8 M.L.J. 203.