SRI RAJA D K VENKATA LINGAMA NAYANIM BAHADUR VARU (SINCE DECEASED) Vs. RAJAH INUGANTI RAJAGOPALA VENKATA NARASIMHA RAYANIM BAHADUR VARU

JUDGEMENT

(1.) This appeal arises out of proceedings in execution of a final decree for sale passed as far back as 3 May, 1927, for a large sum of money claimed as arrears of maintenance due to a junior member of the family of the Rajah of Kalahasti. The 24 defendant in the suit (O.S. No. 86 of 1916 in the Court of the Subordinate Judge of Chittoor) who is the appellant before us, pleaded that the application filed in the lower Court on the 1 November, 1939 (E.A. No. 379 of 1939) more than 12 years from the date of the decree was barred under the provisions of Section 48 of the Civil P. C., 1908. The respondent decree-holder claimed exemption under Sub-section (2) of that section on the ground that the appellant had prevented him by fraud from executing the decree. The Court below upheld the claim and ordered execution to proceed. The appeal is directed against that order.

(2.) The appeal first came on for hearing before Mockett, J., and one of us on 23 July, 1945, when the case was referred to a Full Bench in view of the conflicting decisions of this and other High Courts as to the scope and meaning of "fraud" as that term was used in Section 48 of the Civil P. C.. Without going into that question, however, the Full Bench remanded the case to the District Judge of Chittoor with directions to require the decree- holder to furnish full particulars of the alleged fraud, and on the evidence called by both sides thereafter to submit his finding to the Division Bench which might then consider whether the case called for a reference to a Full Bench. The directions having been carried out and the learned Judge having considered the evidence and submitted his finding, the case now comes before us for final disposal.

(3.) The allowance for maintenance having been made a charge on about 400 villages comprised in the Kalahasti zamindari, the decree in question directed the sale of those villages in realisation of the sum decreed in default of payment by the numerous judgment-debtors who had acquired interests in the villages charged under subsequent transfers by the Rajah. On the 15 January, 1930, the respondent applied for execution by E.P. No. 20 of 1930 for recovery of the amount decreed by the sale of 21 villages specified in the schedule to that petition, and realised in the course of that protracted proceeding more than Rs. 90,000 by the sale of those villages, the last of which was sold in September, 1939. As a sum of Rs. 9,620 still remained due under the decree, he made an. application, E.A. No. 379 of 1939, on 1st November, 1939, in the previous proceeding which had not been formally terminated although all the reliefs claimed by the respondent therein had been granted to him. In the fresh application he prayed that the pending prior proceeding (E.P. No. 20 of 1930) might be continued and the recovery of the balance of the decree debt be ordered by the sale of the seven new villages specified in that application.