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Gobardhan Das Vs. Dau Dayal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All31
AppellantGobardhan Das
RespondentDau Dayal
Excerpt:
- - it may be noted that the decree-holder has taken prompt steps and come to court the very day after the failure of the judgment-debtor's promise.dalal, j.1. a revenue court decree was passed on 10th february 1915. the decree-holder applied for execution admittedly within time by reason of his previous application of 21st march 1923 for the arrest of the judgment-debtor in execution of the decree. there was no arrest. on 29th august 1923, the parties applied to the execution court to register an agreement between them that the judgment-debtor would pay the decretal amount by certain instalments payable on certain dates. for the purposes of the present case the only date worth noting is that of 15th january 1928 when the judgment-debtor agreed to pay the balance. the balance not having been paid on that date the decree-holder applied on 16th january 1928 for recovery of the balance by attachment of property. on that date the.....
Judgment:

Dalal, J.

1. A revenue Court decree was passed on 10th February 1915. The decree-holder applied for execution admittedly within time by reason of his previous application of 21st March 1923 for the arrest of the judgment-debtor in execution of the decree. There was no arrest. On 29th August 1923, the parties applied to the execution Court to register an agreement between them that the judgment-debtor would pay the decretal amount by certain instalments payable on certain dates. For the purposes of the present case the only date worth noting is that of 15th January 1928 when the judgment-debtor agreed to pay the balance. The balance not having been paid on that date the decree-holder applied on 16th January 1928 for recovery of the balance by attachment of property. On that date the application was beyond 12 years from the date of the decree and came within the bar of Section 48, Civil P. C, from the date of the decree sought to be executed unless that bar was escaped by the date of a subsequent order of the Court or by reason of any fraud of the judgment-debtor. The learned Judge of the lower appellate Court held that the application of 16th January 1928 was one in continuation of the application of 21st March 1923 and that therefore the bar under Section 48 did not arise. This view is in conflict with a definite ruling of this Court reported in Har Sarup v. Balgobind [1895] 18 All. 9.

2. It is a single Judge decision. There is however no ruling of this Court to the contrary, nor is any ruling in conflict of any other Court produced. The learned Counsel for the respondent quoted Sant Lal v. Sri Newas [1916] 32 I.C. 1005. The general principles were laid down there that the question whether an application for execution of a decree is a new application or a revival or continuation of an old one is a simple question of fact and it is also a question of substance and not of form. Though a question of fact, when the decision of the lower Court is in conflict with the decision of this Court such a decision of fact cannot be accepted. As to the matter of substance, the difference is not only in form but also in substance because what the decree-holder desired in 1923 was arrest, while at present he desires the execution by attachment. Secondly, in the previous application, reference' was made to the original decree of 1915, while in the present application reliance, is placed on a subsequent agreement between the parties of 29th August 1923.

3. Coming now to the provisions of Section 48, Civil P.C., the bar is not saved by the provisions of Clause (1) (b) because there was no subsequent order of the Court; A subsequent order can be passed only within six months of the passing of the decree under Article 175, Lim. Act. It seems to me that the words 'subsequent order' refer to the particular order permitted to be passed for instalment under Order 20, Rule 11 (2). A Bench of two Judges have held accordingly in the case of Jurawan v. Mahabir [1918] 40 All. 198. This ruling has been specifically dissented from by the Bombay High Court in the case of Apte v. Tirmal A.I.R. 1925 Bom. 503. With all respect the Bench of that Court appears to have overlooked the provisions of the Lim. Act, Article 175. A subsequent order for payment by instalments can be passed by the Court which gave the decree within six month and not after. If the legislature had desired that the Court may be permitted to pass a subsequent order in modification of its decree at any time whatever to make the money decreed payable by instalments, no such limitation as is provided in Article 175 would have been laid down. The view of this Court appears to have been accepted by the Madras High Court in Shuja-ul-Mulk Bahadur v. Umir-ul-Umra Bahadur A.I.R. 1926 Mad. 20.

In my opinion however this consideration does not exhaust the matter in issue. The learned Judge of the lower appellate Court has rightly referred to the ruling of this Court in Lalta Prasad v. Suraj Kumar A.I.R. 1922 All. 145. The circumstances of the present case are such that, in my opinion, the decree-holder is entitled to a concession of the period of limitation on the ground of fraud. As pointed out by Walsh, J., in the ruling just quoted the word 'fraud' in Section 48, Clause 2 (a), should not be interpreted in a narrow sense. Any action of the judgment-debtor which puts off the decree-holder from executing his decree at once should be taken as fraud if the result thereof is to bar the execution of the decree under the 12 year's rule. In the present case the judgment-debtor made a certain promise in August 1923 which led the decree-holder to hold his hand and not to execute his decree until after 15th January 1928. By making such an agreement he derived an advantage and when he is not prepared to fulfil the agreement his conduct amounted to fraud. For this reason I hold that the application for execution dated 16th January 1928 was within limitation. It may be noted that the decree-holder has taken prompt steps and come to Court the very day after the failure of the judgment-debtor's promise. For this reason I dismiss this appeal but make no order as to costs.


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