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J.P. Mohana Rao, Adv. Vs. Arava (Arava) Joshuva Panchalaiah - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1893 of 1977
Judge
Reported inAIR1978AP345
ActsLimitation Act, 1963 - Sections 17 (1) - Schedule - Article 125; Code of Civil Procedure (CPC), 1908 - Order 21, Rule 1(2)
AppellantJ.P. Mohana Rao, Adv.
RespondentArava (Arava) Joshuva Panchalaiah
Appellant AdvocateM.V. Ramana Reddy, Adv.
Respondent AdvocateP.V. Sehaiah and ;K. Durga Prasad, Advs.
Excerpt:
.....schedule to limitation act, 1963 and order 21 rule 1 (2) of code of civil procedure, 1908 - money decree holder filed execution petition - subsequently judgment-debtor(jd) filed execution application for recording part satisfaction of money decree - decree holder denied about claim of jd and pleaded that application by jd was barred by article 125 - jd sought to take advantage of section 17 (1) (a) on ground that fraud was impleaded by decree holder - jd produced receipt containing undertaking by decree holder for recording of part satisfaction of money decree on reopening of court after vacation - evidence of attesting witness to said receipt found highly artificial and wholly unacceptable - held, no fraud was impleaded by decree holder and application filed by jd barred by article..........part satisfaction to the extent of rs. 8,603-95 ps. according to him, on daughter in favour of the decree-holder for a sum of rs. 5,500/- and further paid a sum of rs. 3,103-95 p. in cash. notice of the petition was given to the decree-holder who denied receiving any such payment or having purchased the car. he also pleaded that the judgement-debtor's application is barred by article 125 of the limitation act, 1963. the court below enquired into the same and upheld the judgement-debtor's plea that has paid a sum of rs. 8,603-95 to the decree-holder, as alleged by him. it overruled the objection of the decree-holder relating to limitation relying upon s. 17 of the limitation act. hence this civil revision petition.2. the first question raised by mr. m. v. ramana reddy, the learned counsel.....
Judgment:
ORDER

1. Decree holder is the petitioner. He obtained a decree for money against the respondent and filed E. P. No. 71/1972 for realising a sum of Rs. 9,722-40 ps. Meanwhile, the summer vacations intervened and the Courts reopened on 11-6-1973. On 14-6-1973 the judgement-debtor filed E. A. No. 43 of 1973 for recording part satisfaction to the extent of Rs. 8,603-95 Ps. According to him, on daughter in favour of the decree-holder for a sum of Rs. 5,500/- and further paid a sum of Rs. 3,103-95 p. in cash. Notice of the petition was given to the decree-holder who denied receiving any such payment or having purchased the car. He also pleaded that the judgement-debtor's application is barred by Article 125 of the Limitation Act, 1963. The Court below enquired into the same and upheld the judgement-debtor's plea that has paid a sum of Rs. 8,603-95 to the decree-holder, as alleged by him. It overruled the objection of the decree-holder relating to limitation relying upon S. 17 of the Limitation Act. Hence this Civil Revision Petition.

2. The first question raised by Mr. M. V. Ramana Reddy, the learned counsel for the revision petitioner (decree-holder) is that the very application filed by the judgement-debtor for recording part satisfaction is barred by limitation and that, Section 17 has absolutely no application to the facts of the case and cannot operate to save limitation in favour of the judgement-debtor. He submitted that once limitation begins to run, no subsequent disability or inability can stop it. According to him, the period of thirty days prescribed by Art. 125 began to run on and from 9-5-1973 itself and, therefore, the alleged breach of undertaking on the part of the decree -holder (the undertaking contained in the receipt, Ex. A-1) to report the said part satisfaction to Court, cannot stop or suspend the running of limitation. He also submitted that the breach of the said undertaking, assuming that Ex. A-1 is true, does not amount to 'fraud' within the meaning of Section 17. Counsel also disputed the finding arrived at by the Court below that Ex. A-1 is true and that the J. D.'s daughter's car was sold to the decree holder or that he was paid any money is cash.

3. Before dealing with the legal contentions, I must refer to the relevant stipulation contained in Ex. A-1 which is a receipt said to have executed by the decree-holder. on 9-5-1973. For the purpose of this discussion, I will assume that Ex. A-1 is true. It contains an undertaking given by the decree-holder that immediately upon the reopening of the courts, he will get the satisfaction recorded to the extent of the amount paid under Ex. A-1. The argument of Mr. P. V. Sashaiah, the learned counsel for the judgement-debtor is that having expressly undertaken to get the part satisfaction recorded on the reopening of the Court, the decree-holder fraudulently and dishonestly to do so. The judgement-debtor was under the impression that the decree-holder would abide by his undertaking; but, when he enquired in the Court soon after it reopened, he came to know that no such satisfaction was got recorded by the decree-holder, he was not available. In those circumstances, the judgement-debtor himself applied to the Court to record the said satisfaction. The earliest he could apply, in the circumstances of the case, was on 14-6-`973. Learned Counsel contends that it must be assumed that the decree-holder was impugned with fraudulent intentions even on 9-5-973 and that, because of the said fraud on his part, the judgement-debtor is entitled to take advantage of S. 17)1) (a) of the Limitation Act and, for that reason, his application is within time.

4. According to Art. 125 of the Limitation Act, l the period for getting an adjustment or satisfaction f a decree recorded is thirty days from the date when the payment or adjustment is made.' Sub-section (1) of Section 17 [Counsel for the decree-holder relies upon only clause (a) and not upon clause (b)] in so far as it is relevant for our purposes, reads as follows:---

'S. 17 (1):--- Where, in the case of any suit or application for which a period of limitation is prescribed by this Act:---- (a) the suit or application is based upon fraud of the defendant or respondents or his agent..... the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake, or could, with reasonable diligence have discovered it.......' The question that, therefore, arises in this case is whether it can be said that the application of the judgement-debtor E. A. No. 43/1973 is 'based upon fraud of the ........... respondent'. In other words (Contd. on Col. 2)

Act of 1963:

S. 17 Effect of fraud of mistake:

(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act........................

(a) the suit or application is based upon fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or can it be said that the breach of the undertaking on the part of the decree-holder, viz., to get the part satisfaction recorded on the reopening of the Court, amounts to fraud, and further, whether it can be said that the application is based upon the said fraud within the meaning of Section 17?

5. It is not possible to give an exhaustive definition of 'fraud'. But, it needs be mentioned that in the definition of the said expression contained in Section 17 of the Contract Act, 'a promise made without any intention of performing it' and ' any........ act fitted to deceive' are mentioned as amounting to fraud. Now, in this case, the decree-holder did undertake to get the part satisfaction recorded on the reopening of the Court. On the basis of the said undertaking, which amounts to a promise, the judgement-debtor did not take any steps for filing a petition on the reopening day of the Court for recording the part satisfaction. In any event, the promise and the failure to perform the said undertaking thereby causing substantial loss to the J. D., do, in my opinion , amount to fraud.

6. The next question that arises is, whether it can be said that the judgement-debtor's application is based upon the fraud of the respondent D. H.. On this question, Sri M. V. Ramana Reddy, the learned counsel for the decree-holder (petitioner), cited several decisions rendered under the corresponding provision, Section 18 of the Limitation Act, 1908. But, before referring to those decisions, it is well to remember the essential distinction between Section 18 of the 1908 Act and the present Section 17. For bringing out the said distinction, it would be appropriate to read both the provisions. Section 17 of the present Act is set out only in so far as it is relevant for our purposes:---

Act of 1908:

S. 18 Effect of fraud:

Where any person having a right to institute a suit or make an application has, by means of fraud , been kept from the knowledge of such right or of the tittle on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application --- (a) against the person guilty of the fraud or accessory thereto, or

(b) against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production......'

(c) the suit or application is for relief from the consequences of a mistake; or

(d) Where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him; the period of limitation shall not be gin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it, or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production................'

7. A reading of the above two provisions will disclose that clause (a) in sub-section (1) of the present Section 17 contains entirely a new facet. It is stated in the objects and reasons that Section 18 of the previous Act has become recast on the lines of Section 26 of the Limitation Act, 1939 of the United Kingdom, so as to include actions based on fraud and also for relief founded on mistake. It may be noticed that clause (a) of sub-section (1) is the same as clause (a) of Section 26 of the English Act.

8. In the present case, the judgement-debtor has come forward with a specific case that the decree-holder , having undertaken to get the part satisfaction recorded on the reopening of the Court, failed to do so fraudulently and dishonestly, and that soon after coming to know of the same, he is applying at the earliest possible moment. Can it not be said in such a case that the application of the judgement-debtor is based upon fraud of the respondent decree-holder? I find no hesitation in answering the said question in favour of judgement-debtor. The burden of the song of the judgement-debtor's application is the alleged fraud played upon him by the decree-holder. If so, his application must be deemed to be based upon the fraud of the decree-holder, and, therefore, he is entitled to the benefit of Section 17 (1) (a). In this context it may also be noticed that on 9-5-1973 when the part satisfaction of the decree was arrived at, the Court was closed. It reopened only on 11-6-1973. Before that date, neither party could have applied for recording the adjustment. In view of the specific undertaking of the decree-holder in Ex. A-1, the judgement-debtor obviously did not take any steps by himself on 11-6-1973, but he made enquiries and tried to contact the decree-holder and when he realised that he is sought to be cheated by the decree-holder, he filed his own application on 14-6-1973. In the above circumstances, it must be said that the limitation of thirty days prescribed by Art. 125 of the Limitation Act does not begin to run until the judgement-debtor in this case had discovered the fraud, which was only on or after 11-6-1973 . In this view of the matter, there is no question of applying the principle of Section 9 of the Limitation Act. It must be held that the limitation has not begun to run in this case until the fraud was discovered by the judgement-debtor.

9. It is unnecessary to refer to the large number of cases cited by the learned counsel for the petitioner/D.H., all of which are rendered on the language of Section 18 of the 1908 Act. According to the said Section 18, it was necessary for a person, claiming its benefit, to prove that he has been, by means of fraud, kept from the knowledge of the right or title on which his action is founded, and the several decisions merely elucidate and emphasize the said aspect. That aspect is now found stated in clause ?(b) of sub-section(1), which is not relied upon by the judgement-debtor in this case. Since clause (a) ion the present Section 17 (1) is new, it is in my opinion, wholly, unnecessary to refer to the several decisions cited.

10. It has, therefore, become necessary to go into and consider the submissions of the learned Counsel for the petitioner regarding the merits of the case, with a view to find out whether the story of part satisfaction put forward by the judgement-debtor is true, or not. As stated herein before while discussing the question of limitation, I had assumed for the purpose of the said discussion that Ex. A-1 is true, for deciding the question whether it is true or not I will now refer to the material on record.

11. The judgement-debtor's case is this. On 9-5-1973 the decree-holder came to his house where a car belonging to his daughter was handed over to the decree-holder and its consideration, Rs. 5,500/- was adjusted towards the decree obtained against him. Besides that, he says, he paid in cash a sum of Rs. 3,103-95 ps. According to him, he borrowed a sum of Rs. 3,000/- from P. W. 3 under a promissory note, Ex. X-7. To prove his case, he has examined himself as p. W. 1 his daughter as P. W. 2, and a witness P. W. 4 (attestor of A-1) besides p. W. 3. The Court below has no doubt accepted this evidence but, in my opinion , the said evidence is wholly unworthy of any credit and has to be rejected.

12. I will first take up the story of the sale of car to the decree-holder. The Court below was very much influenced by Ex. X-3, which is letter from p. W. 2 to the R. T. O. Chittoor, intimating him that she has sold the car to the decree-holder. The said letter purports to have been written on 19-5-1973 and this fact has been relied upon by the Court below as confirming the truth of the judgement-debtor's case. It is, no doubt, true that the letter purports to have been written on 19-5-1973, but it does not appeal that it was sent to or received in the office of the R. T. O. on or soon after 19-5-1973. The original letter along with the return endorsement is filed into this Court. There is neither a seal nor any signature of any person, not any date showing as to when it was received in the office of the R. T. O. The Court below appears to have been swayed by the date mentioned at the top of the said letter and did not take care to find out whether it was in fact written or sent on that day. No other record is produced to show when the said letter was received by the R. T. O., nor does the written endorsement (Ex. X-4) contain any indication to the said effect.

In this context, it may be seen that the judgement-debtor is said to be a retired Male-Nurse. His daughter (P. W. 2) is working as a Matron getting salary of about Rs. 400/- per month, and her husband is said to be working as a Veterinary Assistant Surgeon. She claims that the said car was purchased by her mother in 1968 and that, it was transferred by her mother in her name in 1969. Of course, she has no document to establish the same. She goes further to the extent of saying that the car was purchased on hire-purchase basis and that, the instalment were being paid by her father. In the context of the circumstances of the judgement-debtor, this story appears to be improbable, P. W. 1 and P. W. 2 have admitted that the car has not been transferred in favour of the decree-holder even till the date of their deposition.

They came forward with a convenient story that the decree-holder, having taken possession f the car, has dismantled it and sold it in parts. No evidence is forthcoming with respect to the said allegation. Similarly, the story of P. W. 3 leading a sum of Rs. 3,000/- to the judgement-debtor under Ex. X-7 dated 7-5-1973 appears to be equally doubtful P. W. 3 says that he is partner in a workshop at Nellore and that he became acquainted with the judgement-debtor when the latter was working in the T. B. Hospital. He says that his sister was admitted for treatment in the T. B. Hospital and she was treated therefore about a year. He does not claim any close friendship with the judgement-debtor and, in fact says, 'I have got only acquaintance with P. W. 1.' He says that the amount lent by him does not find a place in the accounts of partnership and that, it is not found mentioned even in his Income-tax account, though he asserted that he is an Income-tax payer. He further says that the judgement-debtor asked for the loan about 10 days prior to Ex. X-7, promising to repay it in one year. He says that he has been paid only a sun of Rs. 900/- on 9-2-1975 and nothing further, though he was examined on 2-7-1977. i.e., more than four years after the alleged loan. He says that he orally demanded the amount but never issued a notice.

In the context of the mere acquaintance between him and the judgement-debtor and also in the light of their respective circumstances, the story of loan appears to be highly unbelievable. P. W. 4 who claims to have been present at the time of the said settlement at the house of the judgement-debtor says the he went to the judgement-debtor's house on that day to take the manner purchased by him. He says, he went there with a car and then he witnessed the said transaction. He appears to be, what is referred to as a chance witness It may be noticed that the decree-holder had denied having ever gone to the judgement-debtor's house, or having entered into the said settlement or having obtained the car or the cash. The story of the decree-holder going to the judgement-debtor's house for receiving the amount or for arriving at a settlement appears to be equally improbable. It may further be noticed that the very averments in Ex. A-1 show that the judgement-debtor is aware of getting the said satisfaction recorded on the reopening day of the Court. He also appears to have had the assistance of a Counsel. In these circumstances, it is highly unlikely that he would pay the amount without reference to his counsel, or would have delivered the car without obtaining a separate receipt in that behalf. Except Ex. A-1 no other document has been produced by the judgement-debtor, in proof of his having sold the car, or in proof of his having paid the said cash to the decree-holder. The scribe of Ex. A-1 has been examined, on the allegation that has was brought there by the decree-holder and that, he is now keeping him away from the Court P. W. 4 is said to be one of the attesting witness to Ex. A-1 but his evidence appeals to be highly artificial and wholly unacceptable.

13. For the above reasons, it must be held that Ex. A-1 is not established to be true and, accordingly, this Civil Revision Petition is allowed with costs.

14. Revision allowed.


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