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Arikat Abdul Kader and anr. Vs. Mallisseri Krishnan Nambudiripad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 642 of 1962
Judge
Reported inAIR1967Ker87
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48(2)
AppellantArikat Abdul Kader and anr.
RespondentMallisseri Krishnan Nambudiripad and anr.
Appellant Advocate K. Mohammed Naha, Adv.
Respondent Advocate P.C. Balakrishna Menon, Adv.
DispositionAppeal dismissed
Cases ReferredIn Venkata Lingama Nayanim Bahadur Varu v. Rajagopala Venkata Narasimha Rayanim Bahadur Varu
Excerpt:
.....of hindered or checked in some way the proceeding which he was prosecuting. ' on the facts of that case, however, the decree-holder failed to establish that point, and therefore was not entitled to the..........was e. p 701 of 1943 dated the 28th september, 1943. in connection with that execution petition an execution application, e. a. 1209 of 1944, was made on the 28th november, 1944, for proceeding against additional immovable properties by attachment and sale. that application came to be dismissed on the 8th march, 1945, and e. p. 701 of 1948 was closed on the 4th august, 1948.the present execution petition was filed within the period of three years of the final order on the previous execution petition, as provided by article 182 of the indian limitation act, but well beyond the period of twelve years computed from the date of the decree as provided by section 48(1)(a) of the civil procedure code. the respondents relied on section 48(2)(a), c. p. c. for maintaining, that the execution.....
Judgment:

Velu Pillai, J.

1. This appeal by the legal representatives of the deceased judgment: debtor is directed against the judgment of a learned single Judge of this Court in S. A. 352 of 1958, by which it was held, that execution petition 401 of 1951 dated the 4th August, 1951, in O. S. 243 of 1929 filed by the respondents decree-holders was within time. The decree sought to be executed was passed on the 28th September, 1931, and the previous execution petition which was within time was E. P 701 of 1943 dated the 28th September, 1943. In connection with that execution petition an execution application, E. A. 1209 of 1944, was made on the 28th November, 1944, for proceeding against additional immovable properties by attachment and sale. That application came to be dismissed on the 8th March, 1945, and E. P. 701 of 1948 was closed on the 4th August, 1948.

The present execution petition was filed within the period of three years of the final order on the previous execution petition, as provided by Article 182 of the Indian Limitation Act, but well beyond the period of twelve years computed from the date of the decree as provided by Section 48(1)(a) of the Civil Procedure Code. The respondents relied on Section 48(2)(a), C. P. C. for maintaining, that the execution petition is not barred by Section 48(1)(a), C. P. C. The two lower courts have accepted the plea under Section 48(2)(a), C. P. C., by finding fraud on the part of the deceased judgment-debtor, in that he had been evading arrest in execution of the decree, quite a number of times. This view was affirmed by the learned single Judge in second appeal, this appeal is by special leave.

2. Before us, learned counsel for the appellants contended, that the fraud found having been committed more than twelve years after the date of the decree. Section 48(3)(a) is not applicable.

That provision is as follows:

'(2) 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 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.

According to plain reading, leaving out all that is not necessary for this case, where the judgment-debtor has by fraud prevented the execution of the decree at some time within twelve years immediately before the date of the application for execution, the bar under Section 48(1)(a) does not apply. Thus, the terms of Section 48(2)(a) are opposed to the contention of learned counsel, but he relied on Narayanan Damodaran Namboodiri v. Kuriathu Yohannan, 1956 Ker LT 888 at p. 901: (AIR 1967 Trav-Co 109 at p. 116 FB) as supporting him.

In that case, though it was observed:

'Had any wilful suppression or misrepresentation by the judgment-debtor been made within 12 years of the terminus a quo to lull the decree-holder into a sense of false security it would then have been a matter for consideration whether the case fell under Sub-section 2 (a) of Section 48.'

It was also held that:

'.... the alleged misrepresentation had not and could not have had the effect of preventing execution for any time within twelve years immediately before the date of the application to substitute new properties in place of the one released from attachment'.

In the light of these observations, it is idle to rely on the above case as an authority for the position, that fraud itself must have been committed within 'twelve years on the date of the decree.

3. It was next argued, that even if the deceased judgment-debtor had practised fraud by evading arrest as found, the execution of the decree had not been prevented in consequence. The fraud as found was that although the respondents made eighteen or twentytwo attempts to have the judgment-debtor arrested, the latter had been successfully evading such attempts. His case that he was not evading but had been living outside the jurisdiction of the Court, was repelled. We feel no doubt, that such wilful evasion of process of Court amounting to fraud, did prevent the execution of the decree personally against the judgment-debtor, so as to attract Section 48(2)(a).

It was suggested that the properties now sought to be attached by the respondents as belonging to the judgment-debtor, could have been proceeded against in the previous execution proceedings. The contest between the parties in execution, has now been disposed of by the lower Courts on the preliminary point of limitation, and freedom has been reserved for the appellants to raise their objections, at a later stage, to execution by way of attachment and sale of those properties, and learned counsel for the appellants was not in a position to state before us, that the appellants have or had had, no objections to these properties being proceeded against.

Even granting that upon the evasion of arrest, the respondents could have proceeded to execute the decree against properties by attachment and sale, we are not prepared to hold for that reason alone, that the respondents were not prevented from executing the decree. E. P. 701 of 1943 was for the attachment and sale of certain immovable properties and for the arrest of the judgment-debtor. Some properties were attached and sold and some amount was realised. The fraud found was in relation to the relief by arrest of judgment-debtor. We do not understand the Section to require, that there should be a total prevention of execution of the decree for all time and in every way; in that case, there might in several cases hardly arise the need to execute the decree.

In Yeshwant Deorao v. Walchand Kamchand, AIR 1951 SC 16 decided by the Supreme Court, the fraud found consisted in the screening of 'Prabhat', one item of property which belonged to the judgment-debtor, and this was held to prevent the execution of the decree, although as held, there were other properties which could have been proceeded against; the applicability of Section 48(2)(a) was not held to turn upon the existence or otherwise of other properties, although in applying Section 18 of the Limitation Act, that point was quite pertinent and was considered.

In Venkata Lingama Nayanim Bahadur Varu v. Rajagopala Venkata Narasimha Rayanim Bahadur Varu, AIR 1947 Mad 216, Patanjali Sastri, J., as he then was, stated the rule in these terms:

'Be that as it may, their decision has no application in the present case where the respondent was actually executing his decree, and if, in relation to that proceeding, he puts forward, any fraudulent act of the appellant as a ground of exemption under Section 48(2)(a), it is, in our judgment, necessary for him, in order to succeed, to establish that the fraudulent act complained of hindered or checked in some way the proceeding which he was prosecuting.'

On the facts of that case, however, the decree-holder failed to establish that point, and therefore was not entitled to the exemption. These are sufficient for holding, that the existence of other properties which could be proceeded against, which itself cannot be definitely stated until the objections of the appellants, if any, to the attachment and sale of such properties have been filed and decided, did not prevent the execution of the decree within the meaning of Section 48(2)(a).

4. It was also suggested that the respondents had not been vigilant in the prosecution of the proceedings in execution of the decree. We are surprised to bear this argument, when the deceased judgment-debtor had evaded arrest on twenty-two occasions; the basis of the argument was again, that the properties were not proceeded against. With this, we think, we have dealt sufficiently, perhaps it is only necessary to add, that diligence or the absence of it on the part of the respondents is not to be viewed or adjudged compartmentally. They have been prosecuting the execution proceedings with due diligence and if that is a condition for the application of Section 48(2)(a), as to which we express no opinion, that too is fulfilled.

5. The appeal is without merit, and is dismissed with costs.


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