LALTA PRASAD Vs. SURAJ KUMAR

JUDGEMENT

(1.) This is a decree-holder's appeal in an execution matter. On the face of it seems not a little startling that a decree originally passed on the 16 of January, 1900 and affirmed by this Court in appeal on the 19 of February, 1903, should still be under execution. The court below has held that the decree-holder is now barred, both by the three years rule of limitation under the Indian Limitation Act, and also by the special provisions of Section 48 of the Civil P. C.. Taking these points in order, we do not think the court below was right regarding the three years period. The application now before us was made on the 12 of May, 1920, and it was well within three years of a previous application which had been disposed of in the year 1918. The court below has got round this difficulty by a process of reasoning based upon the fate of a previous application of the year 1915. For reasons which we need not enter into, the record is seriously defective; but in a general way we may accept the fact that in the year 1915 there was a decision by the execution court to the effect that the execution of the decree was then time-barred. What we do not know is whether this decision proceeded with reference to the three years rule, or the twelve years rule laid down in Section 48 of the Civil P. C.. The same question of limitation was raised again in the year 1918 and was then decided in favour of the decree-holder. That decision may have been a bad one. It is possible that if the judgment-debtors had contested it in appeal, there might have been a decision in their favour on the ground that the decision of the year 1915 could not be re-considered or set aside. As the case now stands, the later of the two decisions in respect of which either party can plead the principle of res judicata, is in favour of the decree-holder. The grounds, therefore, upon which the court below has applied the three years rule of limitation, cannot be sustained.

(2.) The question regarding the application of Section 48 of the Code of Civil Procedure is a more difficult one. The fact is that until the month of July, 1907, the decree-holders were being held up by a subsequent litigation, in which it was finally decided that their decree could not be executed against one set of defendants who were minors at the time it was passed. This does not affect the validity of the present execution, but merely serves as a partial explanation of the long delay which has affected those proceedings. When the decree-holders took out execution in the year 1908, an objection was raised on behalf of the brothers of one of the present respondents, that is, the party against whom the decree was admittedly capable of execution, which led to further litigation and, after a decision in this Court in favour of the decree-holder on the question of limitation, to a compromise under which a substantial portion of the decree was realized. Since then the judgment-debtors have obstructed the execution of the decree in various ways; even in connection with this present application they seem to have avoided service of the notice and to have succeeded with difficulty in obtaining a re- hearing in the court below after an ex parte under had been passed against them. Taking a broad view of the evidence, we think that the principles affirmed by this Court in cases like those reported in Beni Prasad V/s. Kashi Nath (1909) 6 A.L.J. 401 and Mewa Lal V/s. Ahmad Ali (1911) 9 A.L.J.47 are applicable. We hold that execution of this decree has been obstructed by fraud on the part of the judgment-debtors to a sufficient extent to entitle the decree-holders to the further opportunity sought by them under this present application. We, therefore, allow this appeal, set aside the order of the court below and send the case back to that court with directions to proceed with the execution according to law. The decree holders appellants will be entitled to their costs in this matter in both courts. Walsh, J.

(3.) I agree. I propose to add a few words upon the question of fraud dealt with by the learned judge. It is clear to my mind that he has taken much too narrow a view of his function. He says that the mere filing of frivolous objections was not a fraud as it did not prevent execution and that the fraud must be such as to prevent execution. This is a clear misdirection and a total misunderstanding of the section. The "fraud" dealt with by the section is such as prevents the execution of the decree "within twelve years, and, to my mind, judges ought to take a broad view of conduct deliberately adopted by judgment-debtors with a view to defeating and delaying the just payment of their debts by frivolous and futile objections which are dishonest upon the face of them. It is the duty of a court, and if a court of law does not perform the duty nobody will ever perform it, to preserve a strict standard of moral conduct. Fraud is merely moral turpitude, and if judges set a low standard of moral conduct by their decisions in court, it naturally follows that a low view is taken by the profession, and by the public, and the only way to preserve a standard of conduct for the public in matters of litigation is for the courts to set a strict and proper standard themselves. The word "fraud" in this section should not be narrowly interpreted. Nobody can doubt that the object of its insertion in this section was to prevent the tricks which are constantly played by judgment-debtors, and I propose to cite two or three simple illustrations of the meaning of "fraud," because nobody can say in anticipation exactly what conduct would in a particular case amount to fraud or the kind of conduct which has always been held to be fraudulent.