AMBIKA NAIK Vs. RAM RAJ TEWARI

JUDGEMENT

(1.) This is an appeal in an execution case by the decree-holder, the application for execution having been dismissed on the ground of limitation.

(2.) It appears that a decree for sale was passed and an order absolute for sale was made on the 13 of March 1907. The last application for execution, the one with which we have to deal, was made on the 11 of December 1920. Some of the judgment-debtors came forward with the objection that the application was time barred having been made beyond 12 years from the date of the making of the order absolute for sale. The Court of first instance overruled this objection on the strength of the case of Kaunsilla V/s. Ishri Singh [1910] 32 All. 499. The judgment-debtors appealed. While the appeal was pending a bench of this Court dissented from the earlier case in 32 Allahabad and held that the 12 years rule of limitation enacted in Section 48, Civil P.C., applied equally to decrees, irrespective of the fact whether the decree was passed before the passing of the Civil Procedure Code, 1908 or after it. This decision is reported in Begum Sultan v. Sarvi Begum . In view of this later ruling, the learned District Judge upset the judgment of the first Court and dismissed the decree-holder's application for execution. In the lower appellate Court the decree-holder having found that his application was likely to be thrown out in accordance with Sub-section 1, Section 48, Civil P.C., relied on certain facts as bringing the case within Sub-section 2, Section 48. The learned appellate Judge considered all those points raised before him and was of opinion that those facts did not amount to acts of fraud on the part of the judgment-debtors and did not prevent the execution of the decree at any time within 12 years immediately before the date of the application. In this view, the appeal was allowed and the execution application was dismissed as time barred. In the course of the judgment the lower appellate Court did use the following language: It is only to-day, for the first time, that the plea of fraud has been taken. I think I cannot entertain it. The decree-holders ought to have pleaded fraud and given evidence on it and proved for how long the effect of fraud continued on them. In my opinion the decree-holders should not be allowed to raise the plea of fraud.

(3.) In view of this observation, it has been urged that the lower Court should have allowed, and this Court should allow, the decree-holder an opportunity to find out whether there are any acts of the judgment-debtors which would amount to fraud within the meaning of Sub-section 2, Section 48.