1. This is an appeal against the order of the District Judge of Noakhali, dated the 17th February 1908.
2. The facts of the case are that the decree-holder, who is the appellant before us, after obtaining a mortgage decree, took out execution of that decree on the 28th April, 1904. The mortgaged property was sold and the execution, proceedings above referred to were, therefore, struck off.
3. In the month of February 1906, the judgment-debtor applied to the executing Court to set aside the sale on the ground of fraud, under Section 244 of the old Civil Procedure Code. The Munsiff rejected the application but the sale was set aside by the appellate Court on the 18th May 1907, on the ground of the fraud of the decree-holder.
4. On the 26th September 1907, the decree-holder put in his present application for execution. He was opposed by the judgment-debtor on the ground, that the application was barred by limitation.
5. The first court disallowed the judgment-debtor's objection and held that the present application was a continuation of the application of the 28th April 1904.
6. The judgment-debtor then appealed to the District Judge who held that, inasmuch as the sale was set aside on the ground of fraud on the part of the decree-holder, the decree-holder could not be allowed to take advantage of his own fraud. As it was his own fraud which had created an obstacle in the decree-holder's way and caused the interruption of the proceedings and not any action of the judgment-debtor or any third party or of the Court, the decree-holder, in the opinion of the learned District Judge, was not entitled to treat his present application as a continuation of his execution petition of the 28th April 1904. On the above finding, the learned District Judge held that the present application was time barred, having been filed more than three years after the 10th June, 1904, which was the date on which the sale fees had been paid. The decree-holder has preferred the present appeal to this Court.
7. The only question to be decided in this appeal is whether when the sale was set aside by reason of the decree-holder's own fraud, his present application should or should not be treated as a continuation of his first application.
8. The appellant before us contends that inasmuch as his first application for execution became infructuous by reason of the sale having been set aside, he is relegated to the position that he held on the 28th April, 1904, and hence his present application is not a fresh application for execution but only a continuation of his application of the 28th April 1904.
9. On behalf of the respondent (judgment-debtor), it is contended that as the sale was sot aside and the execution consequently obstructed by reason of the fraud of the decree-holder, the present application cannot be regarded as a continuation of the former proceeding and is, therefore, time barred.
10. It has been argued on behalf of the decree-holder that as a matter of fact the former judgment of the District Judge setting aside the sale reveals no finding of real fraud at all. The judgment has been read to us and we must admit that there is much ground for this complaint. But the decision is final between the parties and we cannot now go behind it. We must take it as settled that the sale was set aside in consequence of the decree-holder's fraud. It appears that this fraud was practised by the decree-holder after his first application for execution. We have, therefore, to decide whether, granting that such a fraud was committed, its effect would be to debar the decree-holder, when the sale was set aside, from taking out execution more than three years after his last application to the Court to take a step in aid of execution.
11. We have been referred to many authorities but none of them appears to be applicable to the facts of the present case. We, however, propose to discuss those authorities, and point out the difference between those cases and the present case.
12. Dwarka Nath Appaji v. Anandrao Ram, Chandra 20 B, 179. In this case an application for execution of a decree was presented on the 17th July 1890. A notice under Section 248, C.P.C. (Act XIV of 1882), was issued on the 18th July 1890. The process fee for service of the notice being deficient, the decree-holder paid the deficiency on the 29th August 1890. On the 22nd August 1893, the decree-holder presented a fresh application for execution. It was held that the second application was time-barred as the payment of additional Court fee was not an application to the Court to take a step in aid of the execution of a decree within the meaning of the Limitation Act. It appeal's that in that case the payment of the deficiency in Court fee was in compliance with the Court's demand for that deficiency and that hence the payment of that deficiency was not in aid of the execution. On the strength of this authority, it is contended that the decree-holder's application is time barred on the ground that it was the decree-holder's own conduct that interrupted the execution. But in this reported case we find that there was no bar to an application for execution being made within three years of the last application to the Court to take a step in aid of execution. In the present case it was impossible for the decree-holder to apply for execution so long as the sale was not set aside. The papers before us do not show whether he was in a position to apply for an order under Section 90 of the Transfer of Property Act.
13. The next case cited is Raghunandun Pershad v. Bhugoo Lall 17 C. 268. In this case a decree was obtained on the 7th March 1881, and in execution of that decree the judgment-debtor's property was attached on the 11th June 1883. On a claim by a third party, a two-thirds share of the attached property was released by the executing Court. With regard to this two-thirds share, the decree-holders instituted a declaratory suit and the result of this suit was that the two-thirds share remained released. The order of the High Court on appeal in that suit was on the 22nd July 1887. During all this time there was no bar to the decree-holders' proceedings against the one-third unreleased share of the attached property. After the order of the High Court above referred to the decree-holders applied on the 15th August 1887, for execution of their decree in respect of the remaining one-third share. On the above facts it was held that the application was barred. It was observed in this case that the decree-holders could, notwithstanding the order in the claim case, have prosecuted their application for execution against the one-third share which was not released in the claim case, their application was for the sale of that third share of the property and there was no bar then to their enforcing the execution of their decree against that third share. In the present case there was a positive bar against any application for execution. Sale had already taken place and so long as the sale was not set aside the decree-holder could not ask the Court to execute a decree which had been fully satisfied unless perhaps the decree-holder was entitled to an order under Section 90.
14. Raghu Nath Sahay Singh v. Lalji Singh 23 C. 397. This was a case in which the judgment-debtor had himself purchased the property benami. It was held by the High Court in this case, more than three years after the execution petition, on which the sale was held, that the property was purchased by the judgment-debtor himself in the name of another. The decree-holder, thereupon, applied for execution and it was held that this application should be regarded as a continuation of his first application. On behalf of the respondents-it is contended on the above authority that the sale in that case was set aside through the fault of the judgment- debtor and hence the second application was correctly treated as a continuation to the first. In the present appeal it is contended that the sale was set aside through, the fraud of the decree-holder, and that his present application, therefore, should be treated as time-barred. We do not think, however, that in the present case the question of limitation really arises. There is on the record the decree-holder's first application dated the 28th April 1904. The sale took place in consequence of that petition. All the proceedings taken on that application have now been set aside and the decree-holder, therefore, is now entitled to ask the executing Court to dispose of his first application which was certainly within time. And his present application is no more than a prayer to dispose of his first application.
15. The learned District Judge has relied on the case of Thakur Prasad v. Abdul Hasan 23 A. 13 and the passage relied upon by him was as follows: A long chain of rulings, beginning with, Parasram v. Gardnar 1 A, 355 and extending down to Raghu Nath Sahay Singh v. Lalji Singh 23 C. 397, has uniformly maintained that a decree-holder's proceedings, could only be held to be legally continued when the interruption to the execution of the decree was not occasioned by any fault or laches of his own but either by the successful objection of a judgment-debtor or a third party which interrupted the execution proceedings or by some obstacle interposed by the Court.' The above quotation appears to be a part of the argument for the respondents of that case. But the learned Judges of that Court accepted the principle in the following observation: If we held the view that the decree-holder had been guilty of laches, we should not be prepared to come to his assistance. 'It appears that in this case the decree-holder's application for execution was dismissed for want of prosecution. He was, called upon to deposit an extra rupee and file a copy of the decree and as he did not do so, the application was dismissed. The facts of this case are distinguishable from those of the present case. From the report of the case it appears that the decree-holder had failed in his initial application for execution by a default in payment of the extra rupee and in supplying a copy of the decree; and hence no execution could proceed. The case was, therefore, dismissed. In the present case, on the contrary, there was no laches on the part of the decree-holder in prosecuting his application on the 24th April 1904. This application was a complete application and nothing was required to be done before execution could proceed. And as a matter of fact the execution did proceed and the property was sold. It is difficult to say that because the sale was procured by fraud, the decree-holder must be responsible for the delay caused by all the subsequent proceedings taken at the instance of the judgment-debtor. It is hardly accurate to say that in taking advantage of the delay caused by these proceedings of the judgment-debtor which the decree-holder resisted, the decree-holder is taking advantage of his fraud. And if when an honest sale is set aside at the instance of the judgment-debtor, the decree-holder's subsequent proceedings are a continuation of the first, it is difficult to see how they can cease to be so if the sale was dishonest.' The honesty or dishonesty of the sale seems to us to have no logical bearing on the question, whether the subsequent proceedings are or are not a continuation of the former proceedings.
16. In the above circumstances, we are of opinion that the present application for execution dated the 26th September, 1907; is in continuation of the application of the 28th April, 1904, as by reason of the sale having been set aside; the latter is undisposed of. We, therefore, decree this appeal with cost 2 gold mohurs. The execution will proceed.