P S RAMANATHAN CHETTIAR Vs. MGMOIDEEN SAHIB

JUDGEMENT

(1.) IN this case the appellant is a decree-holder in O.S. No. 423 of 1907 in the Madras City Civil Court. He attempted to execute the decree on several occasions in 1911, 1914, 1917 and finally, just as the decree was about to be barred by limitation, he filed the present petition E.P. No. 162 of 1920. IN that he asked for the arrest of the judgment-debtor and also for the appointment of a Receiver in order to collect a debt due to the judgment-debtor. The arrest was ordered and apparently batta was paid for this arrest on five different occasions, but on no occasion was the debtor found. Meanwhile, an order had been made appointing a Receiver for the collection of the debt. After these many attempts at arrest had failed, the petition was rejected on the 29 of October 1920 but it was restored to tile on the 2 December, 1920 so far as the application for the appointment of Receiver was concerned, but the Judge refused to issue any further warrants for arrest. An appeal was made against that order but was dismissed by this Court on the ground that the appellant had other remedies. He finally obtained a certain sum of money by filing a suit against the judgment-debtor's debtor but only realised a sum of Rs. 754 the decree amount being over Rs. 4,000. He then put in another petition praying that the judgment-debtor might be arrested, C.M.P. No. 813 of 1921, but that petition was dismissed on the ground that it was a fresh application and not a continuance of the former application and was, therefore, barred as being more than twelve years from the date of the decree. An appeal has been filed against that order as well as against the final order dismissing the execution petition, and it is urged that, firstly, C.M.P. No. 813 must be treated as a continuation of E.P. No. 152 and it is, therefore, in time and, secondly, that it is in time by reason of the fraud of the judgment-debtor who has been evading arrest.

(2.) THE first point is one of considerable difficulty and we have been referred to a number of decisions dealing with the point, but we think that it is unnecessary to determine it in these proceedings because the appellant must succeed on the second point. It has been held so far back as Annamalai Goundan V/s. Rangasami Chetti 6 M. 865 : 2 Ind. Dec. (N.S.) 534 that, when a judgment-debtor is able to pay and evades arrest in execution of the decree, he is guilty of fraud within the meaning of Section 48 or Section 230, as it then was, of the Civil Procedure Code. This was affirmed in Ayyavu V/s. Somasundaram Chettiar 60 Ind. Cas. 630 : 12 L.W. 710 : (1920) M.W.N. 788 and the only case to the contrary is Seshachalam Chetti V/s. Rajam Chetty 8 M.L.J. 203 a decision of a single Judge which was expressly dissented from in Seshachalam Chetti V/s. Rajam Chetti 8 M.L.J. 203. "We agree with this view taken in Ayyavu v. Somasundaram Chettiar 60 Ind. Cas. 630 : 12 L.W. 710 : (1920) M.W.N. 788 that the evasion of arrest is fraud within the meaning of Section 48 and the question is whether there has been such an evasion in the present case. It must be conceded that in the lower Court this point was not specifically urged, for it is not dealt with at all in the judgment, but there is a ground taken in the memorandum of appeal and there have been assertions of this evasion of arrest in the course of the proceedings, more especially in the affidavit of the 29 of November 1920 in which it was alleged that the judgment-debtor was evading arrest and that when steps were taken to enter his house, a plea that gosha ladies were inside was raised and no one was allowed to enter. Apart from this affidavit we have the fact that a warrant was taken out on five occasions and returned unexecuted. It is suggested now that the judgment-debtor was unaware of these proceedings and was not in any way evading arrest and, in fact, the judgment-debtor has appeared here and has asked for permission to file an affidavit to the effect that he was in Madras at the time the warrants were issued and was living quietly in the mosque and never attempted to evade arrest. We see, however, that notice of the execution petition was sent to him and it is quite clear that he received that notice and was represented by a Vakil in the lower Court who applied for an adjournment for putting in a counter-affidavit on the 27 of August 1920. On the adjourned date, this Vakil reported that he had no instructions and the judgment-debtor was still absent. Two further warrants were issued after that and again the judgment-debtor could not be found. In these circumstances, we think that it is conclusively proved that the judgment-debtor was keeping out of the way in order to avoid arrest and it would be useless to allow him now to put in any affidavit with a view to showing that he was perfectly innocent of any idea of fraud. We must hold that he was evading arrest in execution of this petition and consequently under Section 48 the period of limitation is extended and this petition is in time. THE appeal is, therefore, allowed. C.M.P. No. 813 will be referred for fresh disposal. Respondent will pay appellant's costs in C.M.A. No. 47 of 1922. No orders are necessary in C.M.A. No. 48 of 1922.