GOBARDHAN DAS Vs. DAU DAYAL

JUDGEMENT

(1.) This is a Letters Patent Appeal arising out of an. execution proceeding. A simple money decree was passed on 10 February 1915. On 21 March 1923, an application which was in accordance with law had bean file 1 for execution praying for attachment an 1 sale an 1 in the alternative for the arrest of the judgment- debtor. In the course of the execution proceeding the parties appear to have come to terms, the judgment-debtor agreeing to pay the decretal amount in instalments extending over several years, the last date being 15 January 1928. All the instalments except the last one were paid. On 10 January 1928, the judgment- debtor sent Rs. 57-3 0 by money order which was refused by the decree-holder who appears to have claimed Rs. 222 in all.

(2.) The decree-holder filed an application for execution on lo January, 1928, for recovery of the balance claimed by attachment and sale of the property of the judgment-debtor He admitted that; the last application for execution was for the arrest of the judgment-debtor which had been struck off on 2 August, 1923 on a compromise having been entered into between the parties for the payment of the amount by instalments.

(3.) An objection was taken that the application was barred by Section 48, Civil P.C. The Court of first instance held that the conduct of the judgment debtor amounted to fraud which saved limitation. The lower appellate Court was inclined to the view that when the compromise was entered into the judgment-debtor honestly intended to pay an 1 has proved his bona fides by paying eight instalments. It did not find that 1 here was fraud committed by him. It however held that the original execution case was still pending and the Court had the right to reopen it at any time and pass fresh orders.