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Vydyan Mathew Oommummen Vs. Kunjukoshy Kochumathen Vydyan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 178 of 1956 (E)
Judge
Reported inAIR1959Ker81
ActsCivil Procedur Code , 1908 - Sections 48
AppellantVydyan Mathew Oommummen
RespondentKunjukoshy Kochumathen Vydyan and ors.
Appellant Advocate T.K. Kurien, Adv.
Respondent Advocate K.P. Abraham, Adv.
DispositionAppeal allowed
Cases ReferredDukhi Ram Barai v. B.N. Rly. Co.
Excerpt:
civil - execution proceedings - section 48 of code of civil procedure, 1908 - whether plea of discharge by judgment-debtor later found to be false amounts to preventing execution of decree by fraud or force within meaning of section 48 (2) (a) - in light of precedents mere raising of objections so as to prolong execution proceedings beyond period limitation cannot be regarded as fraud for purposes of section 48 - raising of frivolous objection would not ordinarily amount to practising fraud on decree-holder for as it can be easily disposed of by court. - .....point of limitation from the date of the fraud for section 48, c. p. c. in other words, the decree-holder has another 12 years within which he can execute his decree.'6. in bandhu singh v. kayastha trading bank ltd.. gorakhpur, air 1931 all 134, sulaiman and young jj. said :'the subordinate judge has held that in view of the frivolous objections taken by the judgmentdebtor from time to time there was fraud or force within the meaning of section 18, civil p. c. which extends the period. he has relied on the case of lulta prasad v. suraj kumar, air 1922 all 145 in support of his view;''and:'the mere fact that there has been a prolongation of the execution proceedings due in part of the objections raised uy tae judgment-debtor from time to time, would not itself amount to fraud or.....
Judgment:

M.S. Menon, J.

1. The 3rd defendant in O. S. No. 369 of 1094 of the Court of the District Munsiff, Karunagapally, is the appellant in this second appeal. He challenges the correctness of the decision of the Courts below to the effect that the execution petition dated 28-10-1121 is not barred by limitation in view of Section 48(2)(a) of the Code of Civil Procedure:

'Nothing in this section shall be deemed.......

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application.''

2. The 3rd defendant raised a plea of discharge by a petition dated 26-10-1102. The petition was dismissed by the Munsiff's Court on 2-1-1104. Against the order of dismissal there was an appeal and also a second appeal. The second appeal was dismissed on 3-6-1106,

3. The only question for consideration as stated in the order of reference dated 24-10-1937 is :

'Whether a plea of discharge by the judgment-debtor which is later found to be false, will amount to preventing the execution of a decree by fraud or force within the meaning of Section 48(2}(a) of the C. P. C.'

It is common ground that there has been no prevention of execution by 'force' and that this second appeal has to be allowed if our conclusion is that the raising of a false plea of discharge will not amount to a 'fraud' preventing the execution of the decree.

4. The reference has been made because of the divergence in the views expressed in Ithakin Ithaku v. Brahmajathan Nambooripad, AIR 1950 Trav-Co 80 and Krishna Pillai Ayyanperumal Pillai v. Geevarghese Oommen. 1955 Ker LT 308 : (AIR 1955 Trav-Co 208). Paragraph 2 of the order of reference reads as follows:

'There is a Division Bench judgment of the Travancore-Cochin High Court in 1955 Ker LT 806 : (AIR 1955 Trav-Co 208) to the effect that it will not amount to fraud. On the other hand, there is another Division Bench ruling of the Travancore-Cochin High Court in AIR 1950 Trav-Co 80 to the contrary.'

5. In AIR 1950 Trav-Co 80 the Court said:

'The defendant has been making systematic attempt to delay execution by frivolous and dishonest objections. Such conduct amounts to fraud under Section 41, Clause (2) of C. P. C. and the period during which such false objections were pending has to be excluded in computing the period of limitation.'

Section 41 of the Travancore Code of Civil Procedure, 1100, corresponds to Section 48 of the Indian Code of Civil Procedure, 1908. What the section contemplates is a fresh starting point of limitation and not the exclusion of any period. As pcin ed out by Sankarasubba Aiyar J. in 34 Trav LJ 425 :

'Section 41 does not contemplate a deduction of any particular period from the prescribed period of 12 years. What the section states is that where force or fraud is proved, that gives a fresh starting point of limitation under Sub-section (2). The point is covered by authority. In Mohsin Ali v. Masum Ali, ILR 34 All 20 it was held that 'upon a correct interpretation of Clause 2 of Section 48, C. P. C. 1908, the effect of the proviso embodied in that clause is that the bar to execution created by the first clause of the same section is removed for a period of 12 years from any date on which the judgment-debtor has by fraud prevented the execution of the decree.'

The same opinion has been taken in Venkayya v. Raghava Charlu, ILR 22 Mad 320. Meesla Rammana v. Akkalabothu Chinna, 8 Ind Cas 805 (Mad) and Govinda V. Umrao Singh, 54 Ind Cas 279 : (AIR 1920 Nag 68).'

That sucli is the position is not disputed before us and is clear from Yeshwant Deorao v. Watchand Ramchand, AIR 1951 SC 16 wherein their Lordships said:

'We have here definite findings of both the Court below that there was fraud preven'i g the execution of the decree within the meaning of Section 48, C. P. C. The appellant thus escapes the bar of the 12 years' period and he has a fresh starting point of limitation from the date of the fraud for Section 48, C. P. C. In other words, the decree-holder has another 12 years within which he can execute his decree.'

6. In Bandhu Singh v. Kayastha Trading Bank Ltd.. Gorakhpur, AIR 1931 All 134, Sulaiman and Young JJ. said :

'The Subordinate Judge has held that in view of the frivolous objections taken by the judgmentdebtor from time to time there was fraud or force within the meaning of Section 18, Civil P. C. which extends the period. He has relied on the case of Lulta Prasad v. Suraj Kumar, AIR 1922 All 145 in support of his view;''

and:

'The mere fact that there has been a prolongation of the execution proceedings due in part of the objections raised uy tae judgment-debtor from time to time, would not itself amount to fraud or force within Sub-section (2), Sub-clause (a) of that section. The raising of an objection, however frivolus would not ordinarily amount to practising fraud on the decree-holder, for it can be easily met and disposed of by the Court. Fraud must be of a nature which the decree-holder is not able to discover at the time and which helps the judgment-debtor in deceiving him and gaining time.'

7. In Biswanath Prasad v. Lachhmi Narain, AIR 1935 Pat 380 Wort J. (with whom James Js agreed) said:

'Now, could it be said that, although the decree-holder was proceeding with the execution met by one objection after another, OBSTRUCtive as thoso objections might be, the decree-holder was prevented by fraud from executing his decree. It seems to me that it would be stretching the language of the section beyond what was legitimate to hold that the judgment-debtors, however, obstructive they might have been, were preventing the decree-holder from executing his decree by fraud merely because they took: advantage of the procedure which was allowed by law. It is true that there is a decision of the Allahabad High Court in AIR 1922 All 145, where the learned Judges appear to be of the opinion that a judgment-debtor's defence under Section 48, Civil P. C., by obstructive proceedings such as took place in the case before us was fraud within the meaning of the section.

The value however of that decision has been diminished by the decision of a Full Bench of the same High Court in Gobardhan Das v. Dau Dayal, AIR 1932 All 273, which arrived at a somewhat different conclusion. In my judgment it is impossible to hold that however obstructive (I am assuming that there was obstruction) the judgment-debtors might have been there was fraud within the meaning of Section 48 of the Code.'

8. In Tulsiram v. E. D. Sassoon and Co. Ltd., Bombay, AIR 1936 Lah 843, Coldstream J. dealt with the matter as follows:

'The judgment in AIR 1922 All 145 was by implication, at any rate, dissented from by a Division Bench of the Allahabad Court in AIR 1931 All 134 and was not accepted as correct by the Patna Court in AIR 1935 Pat 380, and I am unable to hold that the mere raising of objections so as to prolong execution proceedings beyond the period of limitation must, in all cases, be regarded as fraud for the purposes of Section 48.'

9. In Thommen Thomas v. Sankara Iyen, 30 Trav LJ 445 Madhavan Pillai J. (with whom Varghese C. J. agreed) said :

'The fundamental question for decision by us, so far as this appeal is concerned, is whether the objection petition of 14-12-1107 and its prosecution to a final conclusion in both the Courts can in any sense be regarded as constituting fraud within the meaning of Section 41, Clause 2. C. P. C.

Reliance was placed on the decisions of this Court in 18 Trav LJ 792, 26 Trav LJ 439, Narayan Eachukutty v. Ramakrishna Iyen, 27 Trav LT 1106, and K. Gopalan v. K.K. Krishnan, 28 Trav LJ 545 for the broad proposition that the delaying of execution by frivolous and future contentions by the judgment-debtor is 'fraud' within the scope of clause (2) of Section 41. It is not wrong to say that Judges w o decided 18 Trav LJ 192 were almost entirely influenced by the decision of the Allahabad High Court in AIR 1922 All 145.

It is noteworthy that, in subsequent ruli gs of the Allahabad High Court, it was held that the dictum was too broadly stated in AIR 1922 All 145, (vide AIR 1931 All 134 and AIR 1932 All 273). Subsequent to the clarification of the statement of the law by the later Allahabad decisions, the Patna High Court in AIR 1935 Pat 380 refused to follow the broad statement of the law contained in AIR 1922 All 145.

The effect of the decisions of the Allahabad High Court in AIR 1922 All 145 is, therefore, considerably weakened by the later decisions by the same High Count as also by the Patna High Court. The later rulings of this Court in 23 Trav LJ 439, 27 Trav LT 1106 and 28 Trav LJ 545 did but follow the ruling in 18 Trav LJ 792 and have made no reference at all to the later decisions of the Allahabad High Court nor to the statement of the law by the Patna High Court in AIR 1935 Pat 380.'

10. In Venkata Linganna v. Venkata Narasimha, AIR 1947 Mad 216 at p. 218, Patanjali Sastri J. said :

'It was, of course, his object to delay, if not to defeat, execution to whatever extent possible by raising, through his pleader, all pleas which law and procedure make available to him. But we are unable to hold that resistance to execution on legal grounds, however, ill-founded could amount to preventing execution by fraud within the meaning of Sub-section (2) of Section 48. We agree with the observation in AIR 1931 All 134. 'the raising of an objection, however frivolous, would not ordinarily amount to practising fraud on the decree-holder for, it can be easily met and disposed of by the Court.'

11. In Prayagdas Shankerlal v. Mt. Indirabai. AIR 1948 Nag 189 Bose J. said :

'The other details regarding the fraud are simply that the judement-debtor has been contesting the decree-holder's applications only with the view to delay the execution of the decree. It is uigcd that that is either force or fraud, and reliance is placed on Dukhi Ram Barai v. B.N. Rly. Co., AIR 1923 All 145.

With the utmost respect to the learned Judges who decided that case, I am unable to see how a contest which the law permits and which is carried out in open court can amount either to force or to frpud. This decision was not approved in a later Allahabad decision, namely, AIR 1931 All 134. I respectfully agree with the learned Judges in the later case that:

'Fraud must be of a nature which the decree-holder is not able to discover at the time and which helps the judgment-debtor in deceiving him and gaining time.'

'The previous Allahabad decision was also not followed in AIR 1935 Pat 380. Wort J. held there that it is neither force nor fraud when the judgment-debtor takes advantage of the procedure allowed by the law and contests an execution application. It was said that that may be the case when there is substance in the contest, but when the objections made are frivolous then they must be regarded as fraud. Again, I am unable to agree. There can be no fraud unless there is a mistake as to fact and the other side is misled by it. In a contest in a court of law there is no mistake as to fact when the other side knows the facts and contests them, setting out a different set of facts. He is not misled, and as regards the law, every

one is taken to know the law and consequently, whatever legal propositions are set up, there is no fraud; again, the other side is not misled because he contests and contends that the law is otherwise. There can be no fraud when a person is not deceived and knows the facts.'

12. In 1955 Kt-r LT 306 : (AIR 1955 Trav-Co 208) Subramania Iyer J. said :

'A plea of discharge of the decree amount falsely raised and false to the knowledge (sic) decree-holder cannot by itself in our view amount to fraud within the meaning of Section 48(2) of the C P. C. If authority be needed for this proposition reference may be made to AIR 1948 Nag 189'

13. We entertain no doubt that the correct I view is the one expressed in AIR 1931 All 134, AIR 1935 Pat 380, AIR 1936 Lah 843, 30 Trav LJ 445, AIR 1947 Mad 216, AIR 1918 Nag 189 and 1955 Ker LT 306: (AIR 1955 Trav-Co 208) and that the execution petition should be considered as barred by limitation.

14. It follows that the second appeal has tobe allowed. Judgment accordingly, though in thecircumstances of the case without any order as tocosts.


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