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Sri Raja D.K. Venkata Lingama Nayanim Bahadur Varu (Since Deceased) and anr. Vs. Rajah Inuganti Rajagopala Venkata Narasimha Rayanim Bahadur Varu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1947Mad216; (1946)2MLJ383
AppellantSri Raja D.K. Venkata Lingama Nayanim Bahadur Varu (Since Deceased) and anr.
RespondentRajah Inuganti Rajagopala Venkata Narasimha Rayanim Bahadur Varu and ors.
Cases ReferredJhorama Patrani v. Latchanna Dora
Excerpt:
- - 307, 316 and 319 of 1939 just prior to the sale which was actually held on 30th september, 1939, clearly reveal the fraudulent and dishonest intention on his part to hamper and impede the execution by all conceivable means. the terms of the compromise clearly show that the usufructuary mortgage in favour of the appellant's wife was practically set aside as the receiver had to pay bulk of the net rents and profits to that decree-holder and other creditors of the appellant. in many cases it will no doubt be easy to establish the connection between the fraud perpetrated by the judgment-debtor and the failure of the decree-holder to execute the decree on account of the fraud. the judgment-debtor appealed to this court contending, in the words of the judgment at page 314 that, in order.....patanjali sastri, j.1. this appeal arises out of proceedings in execution of a final decree for sale passed as far back as 3rd may, 1927, for a large sum of money claimed as arrears of maintenance due to a junior member of the family of the rajah of kalahasti. the 24th defendant in the suit (o.s. no. 86 of 1916 in the court of the subordinate judge of chittoor) who is the appellant before us, pleaded that the application filed in the lower court on the 1st november, 1939 (e.a. no. 379 of 1939) more than 12 years from the date of the decree was barred under the provisions of section 48 of the code of civil procedure, 1908. the respondent decree-holder claimed exemption under sub-section (2) of that section on the ground that the appellant had prevented him by fraud from executing the.....
Judgment:

Patanjali Sastri, J.

1. This appeal arises out of proceedings in execution of a final decree for sale passed as far back as 3rd May, 1927, for a large sum of money claimed as arrears of maintenance due to a junior member of the family of the Rajah of Kalahasti. The 24th defendant in the suit (O.S. No. 86 of 1916 in the Court of the Subordinate Judge of Chittoor) who is the appellant before us, pleaded that the application filed in the lower Court on the 1st November, 1939 (E.A. No. 379 of 1939) more than 12 years from the date of the decree was barred under the provisions of Section 48 of the Code of Civil Procedure, 1908. The respondent decree-holder claimed exemption under Sub-section (2) of that section on the ground that the appellant had prevented him by fraud from executing the decree. The Court below upheld the claim and ordered execution to proceed. The appeal is directed against that order.

2. The appeal first came on for hearing before Mockett, J., and one of us on 23rd July, 1945, when the case was referred to a Full Bench in view of the conflicting decisions of this and other High Courts as to the scope and meaning of 'fraud' as that term was used in Section 48 of the Code of Civil Procedure. Without going into that question, however, the Full Bench remanded the case to the District Judge of Chittoor with directions to require the decree-holder to furnish full particulars of the alleged fraud, and on the evidence called by both sides thereafter to submit his finding to the Division Bench which might then consider whether the case called for a reference to a Full Bench. The directions having been carried out and the learned Judge having considered the evidence and submitted his finding, the case now comes before us for final disposal.

3. The allowance for maintenance having been made a charge on about 400 villages comprised in the Kalahasti zamindari, the decree in question directed the sale of those villages in realisation of the sum decreed in default of payment by the numerous judgment-debtors who had acquired interests in the villages charged under subsequent transfers by the Rajah. On the 15th January, 1930, the respondent applied for execution by E.P. No. 20 of 1930 for recovery of the amount decreed by the sale of 21 villages specified in the schedule to that petition, and realised in the course of that protracted proceeding more than Rs. 90,000 by the sale of those villages, the last of which was sold in September, 1939. As a sum of Rs. 9,620 still remained due under the decree, he made an. application, E.A. No. 379 of 1939, on 1st November, 1939, in the previous proceeding which had not been formally terminated although all the reliefs claimed by the respondent therein had been granted to him. In the fresh application he prayed that the pending prior proceeding (E.P. No. 20 of 1930) might be continued and the recovery of the balance of the decree debt be ordered by the sale of the seven new villages specified in that application.

4. In his affidavit of particulars of fraud filed on 1st October, 1945, after remand the respondent set out the history of the execution proceeding detailing the objections raised by the appellant 'frivolously and vexatiously' at various stages and charging him with having fraudulently prevented the execution of the decree by such 'obstructive tactics'. He also submitted that,

In any event the petitioner should be allowed to amend the execution petition No. 20 of 1930 by the inclusion of the additional villages and that this petition may be treated as such application.

In his counter-affidavit the appellant pleaded that the respondent's application for proceeding against the new villages not specified in the original execution petition, having been filed after the expiry of 12 years from the date of the decree, was not sustainable. He also averred that the respondent himself and the other judgment-debtors under the decree were responsible for the delay in execution and that, so far as he (the appellant) was concerned, there was no fraudulent conduct on his part which prevented the execution of the decree. He further alleged that he had recently come into possession of certain receipts passed by the respondent on 6th April, 1939, giving up his rights to proceed against the villages in the appellant's possession. He finally submitted that the respondent was not entitled to ask for amendment of the previous execution petition by the inclusion of the villages now sought to be brought to sale.

5. The learned District Judge found, after a review of the earlier proceedings till March, 1935, that there was nothing on the record to indicate that the appellant was guilty of any fraudulent conduct in relation to the execution of the decree. But he held that,

the conduct of the 24th defendant in conveying the property to his sister in 1935 and getting a reconveyance in his favour in 1937, and again usufructuarily mortgaging it to his Rani in 1938 and getting a receiver appointed as per order Ex. P-43, and his applications, Execution Application Nos. 307, 316 and 319 of 1939 just prior to the sale which was actually held on 30th September, 1939, clearly reveal the fraudulent and dishonest intention on his part to hamper and impede the execution by all conceivable means.

Mr. Satyanarayana Rao for the appellant urged that there was no evidence to show that the acts and proceedings referred to by the learned Judge were the result of any fraudulent conduct on the part of the appellant and that, in any case, the said acts and proceedings in no way 'prevented' the execution of the decree. On the other hand, Mr. Subba Rao for the respondent, while supporting the learned Judge's conclusion as regards the appellant's conduct during the later period, challenged the finding in regard to the earlier period. Mr. Subba Rao also submitted, alternatively, that the application of 1939 should not be treated as 'fresh application for execution' within the meaning of Section 48, as it was in substance and in form only an application for continuing the pending execution proceeding (E.P. No. 20 of 1930) for realisation of the balance of the decree amount by the sale of the additional villages already ordered by the decree to be sold.

6. As regards the earlier period (1930-35) the learned District Judge has elaborately examined the course of the execution proceedings and we consider it unnecessary to encumber this judgment with a detailed review of those proceedings as we are entirely in agreement with his conclusion that no fraud in connection with the execution has been established. The respondent's main complaint with reference to that period was that the appellant raised frivolous objections to execution in his counter-affidavit Ex. P-6 filed on 15th March, 1932, and ultimately withdrew them on 2nd February, 1935, by his memo. Ex. P-11 and that he was deliberately causing delay by having the proceeding adjourned from time to time by promises of settlement which he never intended to fulfil. We do not propose to enter into the merits of the objections raised by the appellant which are of a technical nature, as, whatever might have been the finding as to their legal validity if they had been pressed to a decision, it is difficult to say that he acted fraudulently in putting forward purely legal objections however untenable. 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 Bandhu Singhv. Kayastha Trading Bank I.L.R. (1930) All. 419.

the raising of an objection, however frivolous, would not ordinarily amount to practicing fraud on the decree-holder, for it can be easily met and disposed of by the Court.

7. It was said that the subsequent withdrawal of the objections showed that the appellant did not act bona fide in raising them. But the appellant's agent examined as R.W. 1, explained that the objections were withdrawn because the respondent's pleader assured him that the respondent would accept the proportionate amount due from the appellant and exonerate the villages in his possession from all further claim in execution. The learned Judge has believed this evidence which is uncontradicted. In fact, it is admitted that the respondent was entering into similar agreements with the other judgment-debtors at the time and received a considerable portion of the decree amount without having to bring the villages in their hands to sale. This brings us to the other ground of complaint.

8. In pursuance of the aforesaid scheme, the appellant also, it would appear, expressed his willingness to pay his proportionate share of the joint and several liability under the decree, and, on a joint application of both sides, the proceedings were adjourned for settlement on that basis, the following note being made on the petition:

It is said the parties are trying to settle. Failing settlement hearing positively on 1-10-1934.

The respondent says that this was a fraudulent move to gain time as the appellant made no payment and one of his villages included in that petition was brought to sale. As pointed out by the learned District Judge, however, the initiative for a settlement would appear to have proceeded from the respondent himself who was admittedly receiving amount pro rata from some of the other judgment-debtors in full discharge of their liability, and there is nothing on record to show that when the joint application for adjournment was made, the appellant had no bona fide intention to settle the matter on the lines proposed.

9. As regards the subsequent period (1935-39), the learned District Judge has, as already stated, found that the conduct of the appellant revealed 'the fraudulent and dishonest intention on his part to hamper and impede the execution by all conceivable means.' According to the learned Judge, the fraudulent conduct consisted in (1) the appellant conveying the property which the respondent wanted to proceed against to his sister in 1935 and getting a reconveyance in his favour in 1937, (2) usufructuarily mortgaging it to his Rani in 1938 and getting a receiver appointed as per order Ex. P-43, (3) filing the applications E.A. Nos. 307, 315 and 319 of 1939 just before the sale of the village on 30th September, 1939. We will now proceed to consider whether these acts or proceedings amounted to practising fraud on the respondent and prevented in any manner the execution of the decree.

10. It is admitted that the appellant sold the village of Pedda Kannali to his sister in March, 1935 (the exact date of the sale does not appear in the record) and that he got a reconveyance of the property in 1937. This was elicited in the cross-examination of the appellant's agent ((R.W. 1). The matter, however, was not pursued and no questions were put to him as to whether the sale was supported by any and what consideration; nor was any fraudulent purpose suggested as underlying such sale. But having regard to the fact that the sale was effected just about the time when the respondent filed his memorandum Ex. D-11 dated 28th March, 1935 asking for a sale of that village along with others belonging to the other judgment-debtors, the conduct of the appellant in conveying it to his sister who later put forward a claim to it in the execution proceeding, and getting a reconveyance of it when her claim was rejected does look highly suspicious. Assuming however it was a fraudulent act, it does not appear to have affected in any way the course of the execution proceedings. After the respondent filed his memo Ex. D-11, the sale papers were ordered to be filed by the 28th June, 1935 and on the 30th September, 1936 the sale proclamation was settled. On the 17th November, 1936 the village was ordered to be sold on 2.6th January, 1937. Just four days prior to the sale, i.e., on 22nd January, 1937 two applications were made to the Court, E.A. Nos. 16 and 17 of 1937. E.A. No. 16 was filed by a receiver, who had been appointed in execution of a money decree obtained against the appellant's father, objecting that the village was in his possession and management as receiver and should not be brought to sale without notice to him and without obtaining the permission of the Court which appointed him, and asking that the sale posted to 26th January, 1937 should be stopped. E.A. No. 17 was filed by the appellant's sister who as already stated claimed to have purchased the village from the appellant and raised various objections to the respondent proceeding against that village. She also prayed that the sale should be stayed pending the disposal of her petition. Both these applications were dismissed by the Court on 1st March, 1937. But even before these applications were filed the respondent himself had applied in E.A.No. 12 of 1937, dated 7th January, 1937, under Order 21, Rule 72 of the Code of Civil Procedure, (Ex. D-8), praying that he be given permission to bid at the sale ordered to be held on 26th January, 1937 and to credit the sale amount towards the decree. This application was opposed by another judgment-debtor (nth defendant) whose property was also being brought to sale, but the appellant raised no objection. The Court granted the permission asked for by its order dated 1st March, 1937. It is obvious that the sale fixed for 26th January, 1937 could not take place before the respondent's own application for leave to bid and set-off was disposed of on the 1st March. Thus the applications (E.A. No. 16 and 17 of 1937) referred to above for stopping the sale which were also disposed of on the same date did not in fact prove an obstacle to the holding of the sale on 26th January, 1937 which had necessarily to be postponed in view of the respondent's own application E.A. No. 12 of 1937 previously filed. The appellant's transfer to his sister and the latter's application on the strength of it to stop the sale, assuming it to have been fraudulently brought about by him, cannot, therefore, be said to have prevented execution, and the respondent cannot claim the benefit of the exemption under Section 48, Sub-section (2).

11. A similar conclusion is called for in regard to charges (2) and (3) which may be conveniently dealt with together. The appellant purported to mortgage the village Pedda Kannali with possession of his wife Venkata Boyamma in 1938. It appears from Ex. P-43 that in execution of a money decree obtained by another creditor against the appellant the village was attached by another Court, and the appellant's wife intervened with a claim based on the mortgage. There was a compromise as a reslult of which one Srinivasalu Chetti was appointed receiver of the village to take possession and collect the rents and profits thereof out of which Rs. 600 was to be paid to the attaching decree-holder and other creditors before the end of each fasli and the balance, if any, to the appellant's wife. This was on the 19th July, 1939. Before that date, on 15th July, 1939, the Court executing the respondent's decree had ordered the village to be sold on the 5th September, 1939, the proceeding having dragged on in the meanwhile for reasons for which the appellant was not responsible. On the 4th September the respondent himself filed E.A. No. 277 of 1939 praying for an adjournment of the sale to 26th September, on the ground that his application for permission to bid at the sale had not been disposed of and the sale was accordingly adjourned. On the 26th the sale was actually started but it was not concluded as the appellant filed on that day E.A. No. 307 of 1939 stating that his agent had gone to Hyderabad for the purpose of effecting a settlement with the respondent who was then staying there and praying that the sale should be continued from day to day for one week at the cost of the appellant pending advices from Hyderabad. This petition was opposed on behalf of the respondent but the learned Judge directed the extension of the sale from day to day till the 30th September, 'purely as a matter of mere indulgence.' Meanwhile, the appellant had also filed two other applications, E.A. Nos. 315 and 316 of 1939 dated nth September, 1939, requiring the respondent to file into Court a statement of account and asking for a determination of the amount due to him, and the other for stopping the sale on the ground that the village was in the possession of a receiver appointed by the District Court, Chittoor, under the compromise Ex. P-43 already referred to and the previous sanction of that pourt was necessary. These two applications along with another filed on the 30th September, 1939, E.A. No. 319 of 1939, praying for the continuance of the sale for a fortnight to enable the appellant to effect a settlement, if possible, were all dismissed on that day and the sale of the village was concluded in favour of the respondent himself. As regards E.A. No. 307 of 1939 referred to above, no fraud on the part of the appellant in filing the same has been established. The statement in the affidavit (Ex. P-37) filed in support of that application that the appellant's agent had gone to Hyderabad for the purpose of effecting a. settlement with the respondent has not been shown to be false. In this connection it may be mentioned that the statement in the order (Ex. P-36) passed on that application that 'the other side denies the truth of the alleged settlement,' is not quite correct. No concluded settlement was in fact alleged, the only allegation being that 'There was every chance of effecting the settlement with respect to the village to Pedda Kannali by paying of the proportionate liability.' Nor can it be said that that application in any way prevented the execution, for it sought, not the stay of the sale which was held on the day fixed for it, but only its continuance from day to day which was ordered for four days 'as a matter of mere indulgence'. The same remark applies to E.A. No. 315 of 1939 which merely asked for a statement of account from the respondent and for determination of the amount due to him before the sale was held. In E.A. No. 316 the appellant no doubt wanted the sale to be stopped on the ground that the village being in the possession of a receiver appointed by a different Court, the sale could not be held without the previous sanction of that Court. It was suggested for the respondent and the suggestion has apparently been accepted by the learned Judge, that the usufructuary mortgage by the appellant to his wife, the latter's intervention in the execution of another decree resulting in the compromise evidenced by Ex. P-43, the appointment of a receiver in pursuance of the compromise and the appellant's application for stopping the sale on that ground, all formed part for a fraudulent scheme designed to delay the execution of the respondent's decree. There is, however, nothing to indicate any collusion between the appellant and the decree-holder who was executing his decree in the District Court of Chittoor and for whose benefit the receiver was appointed by that Court. The terms of the compromise clearly show that the usufructuary mortgage in favour of the appellant's wife was practically set aside as the receiver had to pay bulk of the net rents and profits to that decree-holder and other creditors of the appellant. Nor is there any evidence to show that the mortgage executed by the appellant in favour of his wife in 1938 was a sham and fraudulent transaction. As in the case of the sale to the appellant's sister, the matter was not pursued in the cross-examination of R.W. 1 who spoke to its execution, and there is nothing more than suspicion to proceed upon. It may be that the transaction was brought about in order to screen the property from the creditors whose claims were provided for in the compromise Ex. P-43. But even so, it did not, as we have seen, prevent the execution of the respondent's decree. The sale was actually held without any postponement on the 26th September, 1939 to which date it had been adjourned at the instance of the respondent himself, and was concluded on the 30th when all these petitions were dismissed. It follows that the respondent cannot invoke the exemption enacted in Section 48, Sub-section (2), Clause (a). It is to be noted that the learned Judge, while finding that the appellant's conduct revealed 'fraudulent and dishonest intention on his part to hamper and impede the execution by all conceivable means', has not considered whether the execution was in fact hampered and impeded by such conduct, probably because he thought that the scope of the enquiry directed by the remand order was limited to the allegations of fraud. We have accordingly had to determine the question for ourselves.

12. It has been contended for the respondent that Section 48, Sub-section (2)(a), should not be narrowly interpreted, and that it is not necessary for the decree-holder, in order to bring himself within the exemption, to prove that execution was prevented in the sense of being actually hindered or checked by the fraud of the judgment-debtor. This contention which is contrary to the plain language of the clause seems at first blush to be supported by the decision of this Court in Ramanathan Chettiar v. Mahalingam Chettiar (1934) 67 M.L.J. 751 : I.L.R. 58 Mad. 311 the headnote of which runs as follows:

The mere fact of a fraud having been committed by the judgment-debtor can be availed of by the decree-holder for claiming exemption under Section 48(a)(a) of the Code of Civil Procedure, and in order to succeed it is not necessary for him to show by evidence that on account of that fraud he was actually prevented from executing his decree. In many cases it will no doubt be easy to establish the connection between the fraud perpetrated by the judgment-debtor and the failure of the decree-holder to execute the decree on account of the fraud. Cases of that description should not, however, be used to restrict the meaning of the expression, where the judgment-debtor, has, by force or fraud, prevented the execution of the decree.

The case in an illustration of how a headnote, though framed in the very words used in the judgment, can yet be misleading if those words are taken away from the context of the particular facts and given an abstract setting. The decree there in question was passed on the 27th November, 1911, and the execution application was presented on the 27th July, 1928 praying for attachment of a decree obtained by the judgment-debtor against a third party. On the 25th October, 1918 the judgment-debtor purported to effect a sale of certain property belonging to him. The sale was impeached by another creditor as being sham and fraudulent and was ultimately adjudged to be such in September, 1927. The decree-holder claimed exemption under Section 48, Sub-section (2) Clause (a) relying on that fraudulent alienation by the judgment-debtor, and the lower Court had upheld the claim. The judgment-debtor appealed to this Court contending, in the words of the judgment at page 314 that,

In order to succeed in his plea under Section 48(2)(a), the decree-holder must show that the judgment-debtor has by fraud prevented the execution of the decree and this he cannot be considered to have shown unless there is evidence that he actually attempted to execute his decree against the property which formed the subject-matter of the fraudulent alienation and was defeated in getting execution. This argument was presented in another aspect also, namely, that the decree-holder in order to succeed, will have also to show that he took steps to proceed against all the other properties of the judgment-debtor before proceeding against the alienated properties in execution. It is only if these conditions are fulfilled that the Court can say, according to the appellant's contention, that the judgment-debtor has by ' fraud ... prevented the execution of the decree....' In other words, the mere fact of a fraud having been committed by the judgment-debtor cannot be availed of by the decree-holder from claiming exemption under Section 48(2)(a) of the Code of Civil Procedure, unless he is able to show by evidence that on account of that fraud he was prevented from executing his decree in the manner indicated above.

It is in repelling this contention that the learned Judges made the observations extracted in the headnote. It will be seen that the expression 'the mere fact of a fraud having been committed' was used in contradistinction to what the appellant contended must also be proved in such cases, viz., (1) that the decree-holder took steps to proceed against all the other properties of the judgment-debtor before proceeding against the aliented property and (2) that he actually attempted to execute the decree against the property fraudulently alienated and was defeated in getting execution. The learned Judges held that it was not necessary for the decree-holder to prove such facts in order to avail himself of the judgment-debtor's fraudulent alienation as a ground of exemption under Section 48(2)(a). It may be that a decree-holder who waits to see the outcome of a litigation carried on by another decree-holder against the same judgment-debtor impeaching an alienation of property by the latter as fictitious and fraudulent, and refrains from executing his own decree is placed under some mental constraint by the fraudulent conduct of the judgment-debtor who in that sense prevents execution of the decree by his fraud, and it may not be necessary for the decree-holder in such circumstances to show by evidence that his failure to execute was due to the fraudulent act of the judgment-debtor. We are not, however, called upon in the present case to consider whether that view is correct. It may be that the interpretation of the expression 'prevented the execution' by Shephard, O.C.J. in Seshachalam v. Rajan Chetty : (1898)8MLJ203 where he understood it as meaning 'rendered it impossible to realise' was too narrow as the learned Judges were inclined to think, while their own interpretation was too wide. Be that as it may, their decision has no application to 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. As the respondent has failed to establish this, he is not entitled to the benefit of the exemption.

13. It was next urged on his behalf that E.A. No. 379 of 1939 should not be regarded as a 'fresh application for execution' within the meaning of Section 48, Sub-section (1) but should be dealt with as one for amending and continuing E.P. No. 20 of 1930 which was still pending. Although this point was not raised at any previous stage of the case, we have allowed it to be argued as it involves only a pure question of law. As stated already, the prayer in E.A. No. 379 was that

E.P. No. 20 of 1930 may be continued and (the Court may) order the recovery of the balance of the decree debt as shown hereunder by the sale of the following villages and if the sale proceeds are not sufficient, order the sale of the other villages mentioned in the decree.

14. At the end of the application a list of seven villages was given as villages against which execution is sought at present'. Two of these villages, Konathaneri and Chintapudi belong to the appellant. These villages, although ordered to be sold under the decree, were not among the villages included in E.P. No. 20 of 1930; these villages had all been sold but that petition not having been closed was still on the file of the Court, although nothing more remained to be done thereunder, when E.A. No. 379 of 1939 was filed. The question is whether, in such circumstances, the latter application should or should not be regarded as a 'fresh application for execution' within the meaning of Section 48, Sub-section (1).

15. Though the Code of Civil Procedure speaks of an 'application for execution' it does not contemplate an application for execution being made in general terms and kept pending till the decree amount is fully realised. Section 51 and Order 21, Rule 11(2)(j) show that an application for execution is an application to take one or more of the steps specified therein in execution of a decree. And Rules 12, 14 and 17 further make it clear that those steps should be required to be taken in respect of some specific property or properties. Thus an application for, execution is an application for attachment and sale of certain property or for the arrest and detention in prison of the judgment-debtor or for taking some other steps in execution of a decree. The Code contemplates successive applications being made to the Court to execute the decree by taking one or more of such steps and the Court is bound to assist the decree-holder in the mode required by him subject to the exercise of its discretion as to simultaneous execution against the person and property of the judgment-debtor under Rule 21, provided of course that the application is not barred by any provision of law. It seems to me that, under such a scheme, every application requiring the Court to proceed against a particular property is a substantive application for execution, and an application for attachment and sale or for sale without attachment of property B where a previous similar application in respect of property A has succeeded or failed or is still pending is a fresh application for execution and cannot be treated as one for amending and continuing the prior application, although the prayer in the later application may be worded in that manner. Where no question of limitation arises it is, of course, immaterial how the subsequent application is regarded, but when it is made beyond the period of limitation, its real character assumes importance and must be determined, paying more regard to the substance of the matter than to the form or the words used.

16. Applying these principles to the facts of the present case, we find it difficult to hold that E.A. No. 379 of 1939 was not a fresh application for execution. The above reasoning applies a fortiori here, for it cannot even be said that the previous execution proceeding, E.P. No. 20 of 1930, was really pending when that application was filed. As has been stated, although it had not been formally terminated, all the villages which the respondent then required to be sold had been sold, and no further relief could be granted on the basis of that petition which must therefore be regarded as no longer pending for the purpose of including by way of amendment new properties sought to be sold for realising the balance of the decree amount. (Cf. Badrinarayan Chetlingia v. Baidya Nath Pal (1934) 60 C.L.J. 123.

17. Reliance was placed for the respondent on a recent decision of the Calcutta High Court in Shekendar All Miya v. Abdul Gafur Chaudhuri I.L.R. (1941) 2 Cal. 251 where that Court held that an application for permission to proceed against fresh properties when it was discovered that those mentioned in the earlier execution petition were not attachable was not a fresh application for execution but only a matter of amendment of the previous petition and that the Court had a reasonable discretion in allowing it provided the amendment did not alter the character of the execution. The learned Judges followed Gncnendra Kumar Roy Choudry v. Rishendra Kumar Roy Choudry (1918) 23 C.W.N. 540 which however dealt with the execution of a rent decree governed by the special provisions of limitation contained in Schedule III annexed to the Bengal Tenancy Act. They distinguished Hyatunnissa Chowdhurani v. Achia Khatum I.L.R. (1923) Cal. 743 where the Court refused to accept an application filed beyond 12 years from the date of the decree for adding fresh properties to the list given in an application filed within twelve years, as possibly proceeding on the decree-holder's want of care and diligence. No reference was made to Sultan Hasan v. Nanki Bibi : AIR1928Cal241 where an application for 'continuing' a prior execution petition by attaching certain new properties was refused as barred by Section 48. It may well be that, as laid down in Bandhu Singh v. Kayastha Trading Bank I.L.R. (1930) All. 419, on which also the learned Judges relied, the Court had ample powers of allowing amendment of execution petitions apart from remedying formal defects under Order 21, Rule 17, but, with all respect, we are unable to agree that a decree-holder can be allowed to amend a previous execution petition by including fresh properties more: than twelve years after the date of the decree. For the reasons we have indicated, such an application would be a fresh application for execution within the meaning of Section 48, Sub-section (1) and accordingly barred under the provisions of that section. A similar view has been expressed in Bandhu Singh v. Kayastha Trading Bank I.L.R. (1930) All. 419 Ramrattan v. Datar Kaur A I.R. 1928 Lah. 808 and Gajanand Sha v. Dayandnd Thakur I.L.R. (1942) Pat. 838.

18. Reference was made to the decisions of this Court in Kumar Venkata Perumal v. Velayudha Reddi : AIR1915Mad449 and Thandavamurthi v. Durgamba : AIR1928Mad1154 . In each of these cases the Court refused to treat an application filed by the decree-holder more than twelve years after the decree to proceed against fresh properties of the judgment-debtor as an application to amend and continue an earlier petition for execution filed within such period. But there are observations which would seem to imply that the Court might, in special circumstances, allow such amendment and order execution against new properties even after the expiry of that period. Relying on these observations, Mr. Subba Rao submitted that, in view of the peculiar circumstances of the present case where the decree itself ordered the sale of the property now sought to be sold and the decree-holder had to proceed against properties in the hands of numerous judgment-debtors, we should allow E.P. No. 20 of 1939 to be amended and continued in respect of the new items of property mentioned in E.A. No. 379 of 1939. We are unable to accede to this suggestion. With all respect, we are not satisfied, that the observations referred to above, which must be regarded as obiter, correctly state the position. If an application to proceed against fresh properties of the judgment debtor is to be regarded, as in our opinion it should be, as a fresh application for execution it is difficult to see how the Court can have a discretionary power of allowing the decree-holder to proceed against nevv items of properties after the expiry of twelve years by way of amending a previous petition for execution filed within that period, for to do so would plainly contravene the provisions of Section 48, Sub-section (1). Sub-section (2) amply safeguards the decree-holder's right to execute the decree even after the expiry of twelve years in certain cases, and the Court should not, as it seems to us, allow him in other cases to evade the provisions of the section under colour of amending a previous application so as to include fresh properties which he may wish to proceed against after the expiry of such period. We find nothing opposed to this view in Jhorama Patrani v. Latchanna Dora (1939) M.W.N. 988 to which also our attention was called. The decree-holder in that case did not seek to add fresh items of property to those included in his previous application for execution but only to add a prayer for attachment of some of those items which, having been released from, attachment as unenfranchised service inams not liable to attachment, had since been enfranchised and thus become liable to be attached. The previous application which was filed during the subsistence of the prior attachment had asked for the sale of those properties, and all that the decree-holder subsequently required was that they should be re-attached before they were brought to sale, as the previous attachment had been set aside.

19. An attempt was made on behalf of the appellant to establish that the decree in question had been adjusted by the respondent accepting the payment pro rata from the appellant's predecessor-in-title and agreeing to exonerate the villages since transferred to the appellant and now sought to be sold from all further claim under the decree. C.M.P. No. 2836 of 1945 has been filed in this High Court for the admission of a letter dated 6th April, 1930 and alleged to have been passed by the respondent acknowledging the receipt of such payment and undertaking not to execute the decree against the villages which were then in the possession of the appellant's transferor. It is not necessary to consider whether sufficient grounds have been made out for the admission of the document at this stage, for, assuming that the document is genuine and is properly admissible in evidence, the alleged adjustment, not having been duly recorded cannot be recognised in these proceedings in view of the provisions of Order 21, Rule 2. The plea of adjustment cannot therefore be entertained.

20. In the result, the appeal is allowed, and E.A. No. 379 of 1939 is dismissed with costs throughout so far as the appellant is concerned.


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