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Bhagu Jetha Vs. Malek Bawasaheb - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom318
AppellantBhagu Jetha
RespondentMalek Bawasaheb
Excerpt:
civil procedure code, act xiv of 1882, section 230 - decree--execution--fraud. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the..........was justly due to the decree-holder.'3. we think that the judgment-debtor in the present case has similarly evaded execution by a dishonest stratagem, amounting to fraud, and that therefore, under the last paragraph but one of section 230 of the code, the application of 21st june 1882, was not barred. the order of the subordinate judge is reversed, and proceedings should now be taken on the application according to law. costs to follow.
Judgment:

Charles Sargent, C.J.

1. The decree of which execution was sought by the appellant on the 21st June 1882 was passed on the 1st September 1865., His last preceding application for execution was made on the 31st July 1879, and was granted. It is contended for the appellant that when the Court's bailiff went in pursuance of the order made on- that application, to the house of the respondent (the judgment-debtor) to attach his property, he was prevented by the respondent from attaching it. Evidence was adduced to show that the respondent, on seeing the bailiff approach his house, left the verandah and went inside the house, and chained the door and refused to open it when called on to do so by the bailiff.

2. It is admitted by respondent's pleader that if this evidence is true, and that if the conduct ascribed to the respondent amounted to fraud, within the meaning of Section 230 of the Code of Civil Procedure, the application of 21st June 1882, was not barred by time. We see no reason for distrusting the evidence relied on by the appellant; and the conduct of the respondent amounted, we I think, to a prevention, 'by fraud,' within the meaning of Section 230 of the Code of Civil Procedure, of the execution of the decree. In this view we are supported by the decision of the Madras High Court in Pattakara Annamalai v. Rangasami Chitti I.L.R. 6 Mad. 365. In that case the debtor had eluded the service of the warrant on several occasions, and by making applications, which had the effect, for the time, of staying execution, had managed to delay it for more than 12 years. In disposing of the case, Innes, J., remarked: 'I think, to give full effect to the penultimate paragraph of Section 230, it is necessary to interpret the word ' fraud' in a wider sense than that in which it is generally used in English law. In the Digest it is defined by Labeo, omnis calliditas, fallacia, machinatio ad circumveniendum, falkndum decipiendum alterum adhibita. Dig, IV. 8, 1. I think the contrivance with which the debtor had eluded the creditor until 12 years has elapsed since the execution should be held to be ' fraud ' within the meaning of the section, and I would dismiss the second appeal, with costs.' Kindersley, J., said: 'The appellant' has, by many stratagems, by keeping out of the way when warrants were issued for his apprehension, and by raising false objections in bad faith, dishonestly evaded payment for more than 12 years of the money which was justly due to the decree-holder.'

3. We think that the judgment-debtor in the present case has similarly evaded execution by a dishonest stratagem, amounting to fraud, and that therefore, under the last paragraph but one of Section 230 of the Code, the application of 21st June 1882, was not barred. The order of the Subordinate Judge is reversed, and proceedings should now be taken on the application according to law. Costs to follow.


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