YARLAGADDA VENKANNA Vs. RAMINENI KOTAYYA

JUDGEMENT

(1.) This appeal arises out of execution proceedings following a decree passed dated 3rd March, 1932, for Rs. 2,150 being damages due from the judgment-debtor for breach of contract. A number of execution petitions were filed, the last one being disposed of on 17th December, 1943. It was dismissed on failure of the decree-holder to file certain papers. The execution petition out of which this appeal arises was filed on 22nd April, 1944, and was therefore outside the period of twelve years provided by Section 48 of the Civil Procedure Code although within three years from the date of disposal of the execution petition above- mentioned. The District Munsiff considering these facts found that the present execution petition could not be considered to be a continuation of the 1943 petition which had been plainly dismissed for default, and that, as it was outside the period of twelve years, it was time barred. He therefore dismissed it.

(2.) On appeal the Subordinate Judge allowed evidence to be given of fraud in the sense of Section 48(2)(a) on behalf of the decree-holder. He felt entitled to do so on the authority of Ramanathan Chettiar V/s. Mohideen Sahib (1822) I.L.R. 44 All. 319, where a Bench decided that evidence of fraud could be received and the plea taken even on appeal although it had not been specifically raised in the lower Court. On this authority therefore he allowed the appeal, held that an enquiry should be made into with regard to the allegations of fraud and to ether matters which could be raised, and ordered the execution petition to be restored and disposed of in the light of the observations.

(3.) In this Court it is argued that the Subordinate Judge's interpretation of Ramanathan Ghettiar V/s. Mohideen Sahib (1822) I.L.R. 44 All. 319, was superficial in that it is clear from that judgment that although the plea of fraud had not been specifically raised in the lower Court there was enough on the record to show that the judgment-debtor had been guilty of fraud. In this case it is urged that the word fraud has neVer been mentioned in any Court except the appellate Court, and that, if the well known principles with regard to amending records by adding a plea of fraud at a later stage are to be followed, then in these circumstances consideration of fraud was too late and that the appeal should not have been allowed by the Subordinate Judge.