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Ambika Naik Vs. Ram Raj Tewari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All668; 103Ind.Cas.277
AppellantAmbika Naik
RespondentRam Raj Tewari and ors.
Excerpt:
- - moreover, the judgment-debtors clearly took up at the beginning of the hearing of the case the position that they intended to resist the effect of that decision, in these circumstances i consider that in this particular case at any rate the appellant had no justification in not being ready with his evidence, to establish that he was prevented from executing the decree by fraud.mukerji, j.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 13th of march 1907. the last application for execution, the one with which we have to deal, was made on the 11th 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. ishri singh [1910] 32 all. 499. the judgment-debtors appealed. while the appeal was pending a bench of this court dissented from.....
Judgment:

Mukerji, J.

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 13th of March 1907. The last application for execution, the one with which we have to deal, was made on the 11th 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. 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 : AIR1926All93 . 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.

4. Besides the above contention a particular objection taken by the judgment-debtors has been put forward as constituting fraud on their part. It would be logical to take up the second contention before the first one.

5. It appears that three objections were taken by a petition filed on the 24th June 1915. These objections were ultimately dismissed by the Subordinate Judge on the 11th of September 1915. Whatever might be the view as to the bona fides of these objections, it is abundantly clear on the record that the preferring of these objections did not in any way interfere with the execution of the decree. The order sheet is before us and it shows that the decree-holder was busy in serving notice on the numerous judgment-debtors in the case. Once the objectors' counsel requested the Court to postpone the hearing of the objection till notices had been served on all the judgment debtors. This request was not granted. The result was that the hearing of the objection in no way delayed the execution of the decree. This is a sufficient answer to the contention that the preferring of the objection mentioned above prevented the execution of the decree.

6. Coming back to the contention that time should be given to the decree-holder to find out whether there are or not any acts of the judgment-debtors which prevented the decree-holder from executing the decree, it is sufficient to say that no such request was made either to the Court below, or was any such request made in the memorandum of appeal filed in this Court. The decree-holder, apparently believed, when the case was before the lower appellate Court and when he filed his memorandum of appeal, that he had exhausted all the acts of the judgment-debtors which he could put forward as amounting to fraud preventing him from executing the decree. In this view we are not prepared to grant him any further opportunity to hunt the record and find out whether there are any other acts of the judgment-debtors which would amount to fraud and which prevented him from executing the decree.

7. The result is that the appeal fails and is hereby dismissed with costs.

Ashworth, J.

8. I concur in the decision and order passed. The appellant urges, as a ground for the case being remanded in order that he may furnish further evidence of fraud on the part of the judgment-debtors which prevented him from executing his decree within 12 years, the fact that when the case was tried by the first Court there was a two-Judges decision of this Court according to which, the Civil Procedure Code, 1908 not being retrospective, his application for execution would have been within time. I cannot conceive that a party is absolved from the necessity of taking up all available grounds for resisting a contention of the other side merely because at the date he has authority of the High Court which, if followed, would relieve him of resisting that contention on any but one ground. There would be something to be said for this contention if the decision of this Court, on which he relied had been a full bench decision, but it was only a two-Judges decision. Moreover, the judgment-debtors clearly took up at the beginning of the hearing of the case the position that they intended to resist the effect of that decision, In these circumstances I consider that in this particular case at any rate the appellant had no justification in not being ready with his evidence, to establish that he was prevented from executing the decree by fraud. It has been argued in this case that the application referred to by my learned brother was sufficient evidence of fraud on the part of the judgment-debtors. I am disposed to hold that this is correct. Lalta Prasad v. Suraj Kumar A.I.R. 1922 All. 145 in effect lays down that fraud, as used in Section 48, Civil P.C., will include not merely deceit but will also, except with reference to contract, include circumvention. There is a considerable and consistent body of cases in support of this. I may mention that the American writer Bigelow in his work on fraud has one section dealing with deceit and the second section dealing with circumvention. At the same time I concur with my learned brother that in this particular case, although this application of the judgment-debtors may have amounted to fraud, it was not a fraud which prevented the execution of the decree.


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