1. This appeal arises out of execution proceedings following a decree passed dated 3rd March, 1932, for Rs. 2,150 being damages due from the judgment-debtor for breach of contract. A number of execution petitions were filed, the last one being disposed of on 17th December, 1943. It was dismissed on failure of the decree-holder to file certain papers. The execution petition out of which this appeal arises was filed on 22nd April, 1944, and was therefore outside the period of twelve years provided by Section 48 of the Civil Procedure Code although within three years from the date of disposal of the execution petition above-mentioned. The District Munsiff considering these facts found that the present execution petition could not be considered to be a continuation of the 1943 petition which had been plainly dismissed for default, and that, as it was outside the period of twelve years, it was time barred. He therefore dismissed it.
2. On appeal the Subordinate Judge allowed evidence to be given of fraud in the sense of Section 48(2)(a) on behalf of the decree-holder. He felt entitled to do so on the authority of Ramanathan Chettiar v. Mohideen Sahib I.L.R.(1822) All. 319, where a Bench decided that evidence of fraud could be received and the plea taken even on appeal although it had not been specifically raised in the lower Court. On this authority therefore he allowed the appeal, held that an enquiry should be made into with regard to the allegations of fraud and to ether matters which could be raised, and ordered the execution petition to be restored and disposed of in the light of the observations.
3. In this Court it is argued that the Subordinate Judge's interpretation of Ramanathan Ghettiar v. Mohideen Sahib I.L.R.(1822) All. 319, was superficial in that it is clear from that judgment that although the plea of fraud had not been specifically raised in the lower Court there was enough on the record to show that the judgment-debtor had been guilty of fraud. In this case it is urged that the word fraud has neVer been mentioned in any Court except the appellate Court, and that, if the well known principles with regard to amending records by adding a plea of fraud at a later stage are to be followed, then in these circumstances consideration of fraud was too late and that the appeal should not have been allowed by the Subordinate Judge.
4. It is true as Mulla points out at page 600 of his commentary on the Code of Civil Procedure:
It ism universal practice except in the most exceptional circumstances not to allow an amendment for the purpose of adding a plea of fraud where fraud has not been pleaded in the first instance.
5. He is saying this in commenting on Order 6, Rule 17 of the Code of Civil Procedure, which deals with amendment of pleadings. Naturally where one party is making allegations against another he should say all that he desires to say fully and at once in order that the other side may mete the case put up against him. In my opinion however different considerations arise when applying the provisions of Sub-section 2 of Section 48. Section 48 sets a time-limit on execution. In order to prevent a dishonest and fraudulent debtor from preventing the execution of the decree for the period of twelve years it says that if fraud can be shown then the time-limit may be extended. It is not a question of making specific allegations in a plaint or written statement against the reputation or character of the opposite side. It is a case of being able to show even at the eleventh hour and afterwards that the time-limit laid down by Section 48 should not prevail where the conduct of the judgment-debtor is such as to have prevented the execution of the decree within the twelve years. It is said that:
Judges ought to take a broad view of conduct deliberately adopted by judgment-debtors with a view to defeating and delaying the just payment of their debts by frivolous and futile objections which are dishonest, upon the face of them.' (See Lalta Prasad v. Suraj Kumar I.L.R.(1822) All. 319.)
6. In the present case there is nothing to show that the decree-holder was at any time wanting in diligence except perhaps that the last execution petition failed for want of papers which were required. That may or may not show a technical failure on his part but at any rate there can be little doubt that although he obtained a money decree in 1932 for damages for breach of contract on the judgment-debtor's part he has been utterly unable to touch one pie since that date. The allegations against the judgment-debtor are that he sold all his immoveable properties to his maternal uncle in 1933 within a year of the decree and that that uncle thereafter in no less than 7 or 8 years filed process after process against the unhappy decree-holder in an endeavour to prevent his laying his hands on the property of the judgment-debtor.
7. Certainly from 1933 to 1939 because of this pretended alienation by the judgment-debtor, the decree-holder was utterly unable to execute his decree. In these circumstances and taking the broad view mentioned above, I think that the decision of the learned Subordinate Judge was correct both from a legal and from a commonsense point of view. The execution petition will now be reconsidered by the District Munsiff who will hear all the objections which can be raised by both sides to each other's conduct and decide the matter according to law.
8. This appeal is dismissed. Having regard to the fact that the plea of fraud was not raised before the District Munsiff and the fact that the case relied.upon by the appellate Judge can be distinguished on the facts, I think there should be no order as to costs. The whole matter really arises out of the decree-holder's not preparing all his artillery when he first presented the execution petition. Had he.raised fraud then, there would have been none of this further litigation.
9. (Leave refused).