HANSA GODHAJI MARWADI Vs. BHAWA JOGAJI MARWADI

JUDGEMENT

(1.) The material facts are that on the 13th of March 1899 the plaintiff, who is the present respondent, got a decree for Rs. 2,508 with interest and costs against Hansa Godhaji, a minor. Both the parties are Marwadis. On the 14th of March the members of the caste assembled, and, as is held by the trial Court, effected a compromise for Rs. 2,000 in full satisfaction of the decretal debt, and, as the first Court holds, the money was paid by the appellant s mother and a receipt was passed which was signed by the plaintiff and attested by two witnesses. That payment was not, however, certified to the Court. On the 12th of March 1902 the plaintiff made an application for execution of his decree. According to the Code he was obliged as provided by Section 235(e) to state in writing upon his verification whether any and what adjustment had been made by the parties subsequent to the decree. He stated that there had been no adjustment. That statement was false according to the finding of the trial Court. The application for execution did not, however, proceed, because the plaintiff neglected to pay the fees and so no notice was given to the judgment-debtor who had no knowledge of the application. The judgment-debtor attained majority in 1904, and just before the expiry of three years from the date of the previous application in execution, viz., on the 10th of March 1905, the plaintiff made another application for execution in which he again made a false statement with reference to what was required to be stated as to adjustment in his application.. A.gain. he omitted to pay the fees and in consequence no notice was given to the judgment-debtor. On the 12th of February 1908 a further application was made containing a similar false statement, and that also was not proceeded with by reason of the plaintiff not paying the fees. On the 11th of February 1911 when the period of twelve years was about to expire within which it was necessary that the decree should be executed, if anything remained still to be paid, the present application was made, and again the same false statement was made by the plaintiff. This time, however, he had to pay the fees and the appellant received notice of the application. The execution has been ordered by both the trial Court and the District Court by reason of the provisions of the 3rd paragraph of Order XXI, Rule 2, which corresponds to the old Section 258. The trial Court came to a definite conclusion that in the application which it granted the judgment-creditor was trying to obtain, and was in fact obtaining, fraudulent execution of his decree which had already been satisfied. The Assistant Judge in the District Court came to the conclusion that, whether or not the payment had been actually made, it was not necessary to determine, although there was evidence on the record on the point; because by reason of Order XXI, Rule 2, the Court could not recognize the payment or adjustment.

(2.) This question has already been considered in this Court in the case of Trimbak Ramkrishna v. Hari Laxman (1910) 34 Bom. 575 in which the judgment of my learned colleague gives cogent reasons for holding that the Court should not in the exercise of its duty under Section 244 allow a clear case of fraud to be covered and condoned by the provisions of Section 258 or Order XXI, Rule 2. It appears to us that the provisions of Order XXI, Rule 11, Clause (e), which have been brought to our notice by counsel for the appellant, strongly confirm the conclusion indicated in the case referred to. A fraud, as is admitted in argument by the pleader for the respondent, has, if the findings of the first Court are upheld in appeal, been clearly committed upon the Court in the application for execution by reason of the false statements made by the judgment-creditor, and we cannot permit a litigant by means of proved false statements to obtain an unjust order from the Court in execution.

(3.) We, there fore, set aside the decree of the District Court and remand the case for trial on the question whether the payment was actually made or not as found by the trial Court and for disposal of the application with reference to the remarks in this judgment.