BANARSI PRASAD CHAUDHURY Vs. KIRTYANAND SINGH BAHADUR

JUDGEMENT

(1.) This appeal is by the judgment-debtor and is directed against an order of a Subordinate Judge of Monghyr, holding that the execution case instituted before him was not barred under Section 48 of the Civil Procedure Code. The decree under execution was passed by the Subordinate Judge of Bhagalpur on 1 July 1918, and in or about April 1928, it was brought on transfer to Monghyr where an application for execution was made on 10 April 1928. Certain properties seem to have been attached in execution of the decree, but a claim to the property preferred on behalf of an idol was allowed on 25 December 1929, and apparently the execution could not proceed further. The decree-holder had to institute a suit under Order 21, Rule 63, for a declaration that the property, which he sought to attach and sell was in fact the property of the judgment-debtor and liable to be sold for satisfaction of the decree. The suit was decreed on 20th September 1932; and a week later, on 28 September 1932, the present petition for execution was filed.

(2.) The objection raised was that the application was barred under Section 48 of the Civil Procedure Code. The learned Subordinate Judge has held that as the decree-holder was prevented from executing the decree on account of the fraud of the judgment-debtor committed within 12 years of the date of the decree, the execution was not barred. The fraud consisted in falsely setting up a claimant and thereby forcing the decree-holder to fight out a civil suit. The judgment-debtor has preferred this appeal. In order to appreciate the argument of the learned advocate who has appeared on behalf of the appellant, it is necessary to mention a few more facts. It seems that after the decree-holder was prevented from proceeding to sell the property on account of the claim having been allowed, he sought execution of the decree by the arrest of the judgment-debtor and an application to this effect was made on 18 June, 1930.

(3.) Somehow or other this application was dismissed on 30 September 1981, but this Court ordered on 22 March, 1933 the execution to be revived, and in fact that application is still pending. It has been kept in abeyance till the present application for execution, which is the subject matter of the appeal, is disposed of.