1. This appeal is directed against an order by which the Court below has allowed the execution to proceed on the basis of a decree for money made on the 18th August, 1897 against three persons by name Ram Prosad, Thakur Prosad and Roghunath Prosad. Ram Prosad died on the 1st April 1903. An application was made on the 1st September 1910 and was met at once with the objection that no order for execution could be made on the basis thereof under Section 43 of the Code of Civil Procedure of 1908. The Subordinate Judge has overruled the objection and has held that the case is covered by Sub-section (2) Clause (a) of Section 48. The judgment debtor has now appealed to this Court and on his behalf it has been argued that the view taken by the Sub-ordinate Judge is manifestly erroneous.
2. Section 48 provides that where an application to execute a decree, not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from one of two dates, namely, first, the date of the decree sought to be executed, and secondly, the date of default in making payment when the decree or any subsequent, order directs any payment of money to be made at a certain date or at, recurring periods. Sub-section (2) lays down that nothing in the Section shall be deemed to preclude the Court from ordering the execution of a decree upon an application presented after the exepiration of the term of twelve years when 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. In view of the date of the decree and the date of the present application for execution which, it is not suggested, is in continuation of any previous application, it is manifest, that the objection under Section 48 prima facie is well ft under. In the Court below the decree-holders attempted to bring the case within Clause (a) of Sub-section (2) and the Subordinate Judge has held that the decree holders were prevented by fraud from executing the decree at some time within twelve years immediately before the date of present application. He has relied upon there circumstances in support of his view that there was fraud on the part of the judgment-debtors of the description mentioned in the section. He has pointed out, in the first place, that after the properties of the judgment-debtors have been sold in execution of this very decree on the 18th June 1898, they took objection to the validity of the sale under Sections 244 and 311 of the Code of Civil Procedure of 1882. The objection was disallowed on the 4th April 1399 and an appeal was preferred to this Court but was ultimately dismissed on the 22nd February 1901. The Subordinate Judge appears to have thought that as the objection of the judgment-debtors to the validity of the sale ultimately proved unsuccessful, their conduct must be deemed fraudulent. The second circumstance upon which the Subordinate Judge relies, is the fact of the institution of a suit by one Makunda Bibi who claimed title to the property on the foot of a mortgage, dated the 27th January 1897. The suit instituted by her ultimately proved unsuccessful and was dismissed on the 17th May 1502. The Subordinate Judge is of opinion that this suit was instituted by Mukunda Bibi at the instance of the judgment-debtors who had created in her favour a fictitious mortgage. The third circumstance upon which the Subordinate Judge relies is the institution of a suit against one Radba Krishna in respect of a house which was sold in August 1903. Afrer the decree-holder had purchased this property Radha Kissen preferred a claim, which was allowed on the 5th September 1909. The decree holder as purchaser instituted a suit for declaration of title which was decreed on the 15th November 1903. An appeal preferred against that decree was dismissed on the 17th May 1907.
3. In our opinion, none of the three circumstances upon which the Subordinate Judge has relied in support of his view is sufficient to show that there was fraud on the part of the judgment-debtors within the meaning of Section 48, Code of Civil Procedure. It is worthy of rote, in the first place, that the objection which was taken by the judgment-debtors was to the validity of an execution sale or of the title acquired by the decree-bolder as purchaser. In other words, the decree-holder had to face an objection by the judgment-debtors not in his character as a decree-holder but in his character as an execution purchaser. In the second place, it is obvious that the objection, whether groundless or well-founded, could not stand in the way of further execution of the decree. There was nothing to prevent the decree-holder fro n proceeding with further execution daring the pendancy of the investingation into the validity of the objection. Indeed the history of the litigation shows that the decree-holder did proceed to execute the decree notwithstanding the processings for inquiry into the objections mentioned. Section 43 requires not only that there should be fraud on the part of the judgment-debtor but also that the fraud should be of such a character as to prevent the decree-holder from proceeding with execution of the decree; that this is essential is shown by the decision in Seshachalam Chetti v. Rajam Chetty 8 M.L.J. 203.
4. The only question which remains is, whether the circumstances mentioned by the Subordinate Judge can be treated as constituting fraud on the part of the judgment-debtor. The term 'fraud' as used in Section 48 is not defined in the Code. But the learned Judges of the Madras High Court pointed out in the case of Pattaharra v. Rangasami Chetti 6 M. 365 that the terra 'fraud' in that Section should be interpreted in a wider sense than that in which it is generally used in English, law. This view has been adopted in subsequent decisions and it has been ruled that where the judgment-debtor has eluded arrest in execution of the decree or has prevented the execution of attachment processes, his conduct is fraudulent within the meaning of Section 48 Bhagu Jetha v. Malek Bawasaheb 9 B. 318 and Venkayya v. Raghaa Charlu 22 M. 292.; Visalatchi v. Siva Sankara 4 M. 292; Rai Shamkissen v. Damar Kumari 11 C.W.N. 440. It is not necessary for us to consider whether some of these decisions upon their special facts, may not be open to legitimate comment. The true rule appears to have been laid down by the learned Judge of the Allahabad High Court in Beni Prasad v. Kashi Nath 6 A.L.J. 401 : 2 Ind. Cas. 222 where it was held that when a judgment-debtor keeps out of the way when warrants are issued for his arrest and puts in false objections in bad faith and thereby dishonestly evades payment of money justly due to the decree-holder and determines to take advantage of the delay which he has dishonestly and fraudulently created, when an application for execution is made beyond 12 years from the date of the decree, the execution of the decree is not barred. In the case before us, it is impossible to hold that the conduct of the judgment-debtor was such as to prevent the decree-holders by fraud from proceeding with execution of their decrees. The inference, therefore, follows that the grounds upon which the decision of the Subordinate Judge is based cannot be supported.
5. The learned Vakil for the decree-holder has next endeavoured to support the order of the Subordinate Judge on a different ground. He has contended in substance that the case falls within Clause (b) of Sub-section I of Section 48. That Clause provides that 12 years may be taken to commence from the date of default in making a payment of money where the decree or any subsequent order directs payment of money to be made at a certain date or at recurring periods. The learned Vakil has, in this connection, invited our attention to an order made by this Court on the 7th April 1908 in the course of proceedings is execution of this very decree. It appears that Thakur Prosad, one of the judgment-debtors, had on a previous occasion agreed to pay Rupees 10 every month towards the satisfaction of the decree. Subsequently, the position of Thakur Prosad in life improved and the decree-bolder contended that he ought to be compelled to pay a larger sum. The result was that the Court directed Thakur Prosad to pay Rupees 25 every month. The order of the Court was in these terms: 'The judgment-debtor appellant (Thakur Prosad.) will pay to the decree-holder respondent Rupees 25 in satisfaction of the balance of the decretal amount with costs from this date until the whole amount is paid off. The amount must be paid by the 12th of each month. The appellant will pay the respondent the costs of this Court. In defanlt of payment of any one instalment, the whole of the balance of the decretal amount will become due.' It may be conceded that this order is an order of the description contemplated by Clause (b) of Sub-section (1) of Section 48 inasmuch as it directs the payment of money at a certain date or at recurring periods. But the question still remains whether the present application for execution of the decree is made within 12 years from the date of default in making the payment directed. Now, it is obvious that there has been no default by Thakur Prosad in carrying out this order, because it is conceded that up to the 13th February 1910 when Thakar Prosad died he had regularly made the pay merits on the dates prescribed. But, it is contended by the learned Vakil for the respondent that default was made by the other judgment-debtors Raghunafch Prosad and the sons of Thakur Prosad after his death. In our opinion, this argument is based upon the fallaoy that the undertaking to make the payment was not by Thakur Prosad personally but by him as the representative of the family to which he himself and the other judgment-debtors belonged. But the other judgment-debtors were not even parties to the appeal in which this order was made and there is no room for controversy in our opinion that the undertaking was by Thakur Prosad alone and that there was no default from the date whereof the decree-holder is entitled to claim the benefit of Clause (b) of Sub-section (1) of Section 48.
6. The learned Vakil for the respondent has finally suggested that the decree which he was seeking to execute was not the original decree, but the order of this Court made on the 7th April 1908. This contention also is clearly unfounded. It was not the intention of this Court to supersede the original decree. The order of this Court merely deter, mined the mode of payment for the satisfaction of that decree. We are further of opinion that it was not open to the decree-holder and the judgment-debtor by any agreement to extend the period prescribed by Section 43 of the Code. In support of this proposition we may refer to the judgment of Sir Barnes Peacock in Kristo Komal Singh v. Huree Sirdar 10 M. 169 where the learned Chief Justice observed as follows: 'The Court of execution has no power to alter the decree of the Court which passed it, and the parties cannot alter the law or a decree of Court even by consent. A man may bind himself not to execute a decree of Court within a certain period, but he cannot, by binding himself not to execute the decree for a certain period, add to the time which the law allows him to execute it. In our opinion, it was not open to the decree-holder to claim an extension of the time prescribed by Section 43 by virtue of the arrangement which was made on the 7oh April 1908. The learned Vakil for the respondent has in conclusion urged that the case is very hard and that the decree-holder now finds himself in this difficulty because he consented to accept payment from the judgment-debtor by instalments. But it is incumbent on us to remember that, as was observed by Lord Campbell in the East India Co. v. Odit Churn Pal 5 M.I.A. 43 at p. 60 it is the duty of all Courts of Justice to take care for the general good of the community that hard cases do not make hard law.
7. The result, therefore, is that this appeal must be allowed and the order of the Court below discharged. The appellant is entitled to his costs both in this Court and in the Court below. We assess the hearing fee in this Court at two gold mohurs.