1. There was no force used (as far as I can discover) to prevent execution of the decree. But if there was fraud on the part of the debtor which prevented the judgment-creditor from realizing his debt, he can recover, although more than twelve years have elapsed from the date of the decree.
2. There can be no question from the statement of facts by the Judge that he has rightly found that the creditor used due diligence to get his decree executed. It is only the peculiar provision of Section 230 of the Civil Procedure Code which holds out a temptation to dishonest debtors to stave off execution by every possible means for twelve years that could raise a doubt as to whether the creditor's right to recover is still subsisting. He has satisfied the ordinary provisions of the Limitation Act by the several applications he has put in for execution within the prescribed period of each other. But the debtor, by eluding the service of the warrant on several occasions, and by making applications which had the effect for the time of staying execution, has managed to delay it for more than twelve years, and, though on arrest he paid the money, he applies for refund of it on the ground that the Court was precluded by Section 230 from issuing the warrant. I think to give full effect to the penultimate paragraph of Section 230, it is necessary to interpret the word 'fraud' in a wider sense than that in which it is generally used in English law.
3. In the Digest it is defined by Labeo, Omnis calliditas, fallacia, machinatio ad circumveniendum, fallendum, decipiendum alterum adhibita, Dig. IV, 3, 1 I think the contrivance with which the debtor has eluded the creditor until twelve years has elapsed since the execution should be held to be 'fraud' within the meaning of the section, and I would dismiss this second appeal with costs.
4. I agree that this second appeal ought to be dismissed. The appellant has by many stratagems, by keeping out of the way when warrants were issued for his apprehension, and by raising false objections in bad faith, dishonestly evaded payment for more than twelve years of the money which was justly due to the decree-holder. He now wishes to take advantage of the delay which he has dishonestly and fraudulently, caused. The District Judge has rightly refused to permit him to do so.
5. This Civil Miscellaneous Second Appeal must be dismissed with costs.