TMI Blog1950 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... , Sholapur, to which the decree had been transferred for execution, was made on 24th June, 1940. It was dismissed on 9th September, 1940, for non-prosecution. It would thus be seen that the present application was filed after the lapse of 12 years from the date of the final decree and 3 years from the date of the final order on the previous application. To surmount the bar of limitation, the decree-holder, who is the appellant before us, raised four contentions:firstly, that the final decree, which provided that the plaintiff should pay the deficit court fees on the decretal amount before the execution of the decree, was a conditional decree, and that time began to run from the date when the condition was fulfilled on 5th December, 1935, by payment; secondly, that the period occupied by the insolvency proceedings from 10th August, 1937, to 14th December, 1942, initiated by the decree-holder to get the first judgment-debtor Walchand Ramchand Kothari (with whom alone we are now concerned) adjudged an insolvent, should be excluded under section 14 (2) of the Limitation Act; third- ly, that the period occupied by one Tendulkar, who was the creditor of the present decree-holder, in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alone, by processes like attachment of property and arrest of person. It may be that ultimately in the insolvency proceedings the decree holder may be able to realize his debt wholly or in part, but this is a mere consequence or result. Not only is the relief of a different nature in the two proceedings but the procedure is also widely divergent. The steps taken by the appellant's creditor Tendulkar to attach this decree and put it in execution do not save limitation. His darkhast for attachment of the present decree was on 3rd April, 1940, and for execution of the present decree was on 1st February, 1944, more than 3 years from 9th September, 1940, which is the date of the dismissal of the appellant's prior execution petition. The learned Advocate for the appellant therefore devoted most of his argument to the fourth contention set forth above. That the judgment-debtor respondent suppressed his ownership of the 'Prabhat' newspaper and fraudulently pre- vented the execution of the decree against this property has been found by both the Courts below, as stated already. It was strenuously urged that the fraud so found is not merely fraud as broadly interpreted unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f that property. In our opinion, therefore, the execution of the decree is not barred under section 48. The 'judgment- debtor has, by fraud, prevented the execution of the decree within 12 years before the date of the application for execution by the decree-holder and therefore the decree under consideration is capable of being executed. On the strength of this concurrent finding, Mr. Krishnaswami Iyengar for the appellant argued that the fraud fell within the scope of section 18 of the Limitation Act and that if it were so, he was out of the woods, inasmuch as the proper article to apply would be article 181 of the/imitation Act. The right to apply accrued to him when the fraud became known to him in or about June, 1946. 'Till then he was kept by the fraud from the knowledge of his right to make an application against the property. Law does not require him to make futile successive applications in execution, in the face of this fraud. He was not in a position to seek even the arrest of the judgment debtor as he had got himself declared in the insolvency proceedings as agriculturist. within the meaning of the Deccan Agriculturists' Relief Act. alleging falsely that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his line of reasoning is hardly convincing, when we have to consider whether what is attributed to the judgment-debtor does not amount to a fraudulent scheme or device for preventing execution of the decree that had been passed against him for a very large sum of money. In the very nature of things, fraud is secret in its origin or inception and in the means adopted for its success. Each circumstance by itself may not mean much, but taking all of them together, they may reveal a fraudulent or dishonest plan. It would be convenient to set out here in extenso section 48, Civil Procedure Code, and section 18 of the Limitation Act before we proceed to consider the soundness of the arguments advanced by both sides in support of the positions they have taken up. Section 48, Civil Procedure Code (which corresponds to section 230 of the Code of 1882), is in these terms: 48. (1) 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 12 years from (a) the date of the decree sought to be executed, or (b) where the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... member. It is not necessary to determine which view is correct, as we have here definite findings of both the Courts below that there was fraud preventing the execution of the decree within the meaning of Section 48 of the Civil Procedure Code. The appellant thus escapes the bar of the 12 years' period and he has a fresh starting point of limitation from the date of the fraud for section 48 of the Civil Procedure Code. In other words, the decree-holder has another 12 years within which he can execute his decree. Having thus got over the difficulty in his way under section 48 of the Code of Civil Procedure, he has next to meet the objection under the Limitation Act. On behalf of the appellant, it was urged that section 18 of the Limitation Act applied to the facts and that the right to apply accrued to the appellant when the fraud by the judgment-debtor became known to him in 1946. No reliance was placed on section 18 of the Limitation Act in the courts below and no reference to it is found in the grounds of appeal to this court. It is however mentioned for the first time in the appellant's statement of the case. If the facts proved and found as established are suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conceding to the appellant the right to rely on section 18 of the Limitation Act even at this late stage, let us see if it is really of any help to him on the facts found. The section has been quoted already. It speaks of the right to institute a suit or make an application which by means of fraud has been kept from the knowledge of the person having the right or the title on which it is founded. The right to apply for execution of a decree like the one before us is a single and indivisible right, and not a composite right consisting of different smaller rights and based on the decree-holder's remedies to proceed against the person of the judgment- debtor or his properties, moveable and immoveable. To give such a meaning would be to split up the single right into parcels and to enable the decree-holder to contend that while his right to proceed against a particular item of property is barred, it is not barred in respect of other items. We would then be face to face with different periods of limitation as regards one and the same decree. An interpretation which leads to this result is prima facie un- sound. Both sides agreed that this is the true position, but they reached it f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of owner- ship of the 'Prabhat' newspaper, did not conceal from him his right to make an application for execution of the decree. Indeed, the suppression, which began in 1938, did not prevent the decree-holder from applying for execution in 19-10; and in his answers in cross-examination, he has adimitted that there were other properties to his knowledge against which he could have sought execution, viz., deposits in several banks of the judgment-debtor's monies but standing in his wife's or daughter's names, life insurance policies for which premia were being paid by him, law books written and published by him, movable properties in the house at Poona etc. As a matter of fact, the appellant's present application seeks execution against several of these properties. Nothing prevented him therefore ,from seeking such execution within 3 years of the dismissal of his prior application in 1940. Even with reference to the 'Prabhat', all that the decree-holder states is that as he had no evidence to prove that the concern belonged to the defendant he did not take any steps, and not that he had no (1) knowledge of the ownership. To quote two sentences from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arting point for the schedule to the Limitation Act. This argument cannot be accepted. If a man is prevented from making an application, because of the fraud of the debtor, he is not necessarily prevented from knowing his right to make the application. By the enactment of section 18, the Legislature has distinctly contemplated that for the Limitation Act the starting point is changed on the ground of fraud, only when the knowledge of the right to make the application is prevented by the fraud of the judgment debtor. Having the knowledge that he had the right to make the application, if the judgment-debtor prevents the decree-holder from knowing the existence of certain properties against which the decree could be enforced, the case is clearly not covered by the words of section 18 of the Limitation Act. Therefore the argument advanced on behalf of the appellant is unsound. It was urged that the various starting points mentioned in the third column to article 182 of the Limitation Act cannot apply because none of them specify a fresh starting point for execution acquired on the ground of the fraud of the judgment-debtor. This argument, in our opinion, instead of helping the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '2,) of the Civil Procedure Code but is also entitled to an extension of the time under the Limitation Act, must therefore fail. The second contention urged on behalf of the appellant that because in the third column of article 182 fraud is not mentioned, the case is covered by article 181 does not also appear to be sound. The third column in article 182 prescribes the starting point of limitation under different specified circumstances. It does not, and indeed need not, mention the ground of fraud because if fraud of the kind against which the Limitation Act contemplates relief, as prescribed in section 18 of the Limitation Act, is established, the time is automatically altered by operation of that section. If the case does not fall under that section, no relief is permitted under the Limitation Act and the starting point for computing the period must be as mentioned in the third column, irrespective of the question of fraud. In our opinion, therefore, the contention that because of the fraud established in the present case under section 48(2) of the Civil Procedure Code, the appellant gets a fresh starting point of limitation under article 182 of the Limitation Act is unaccep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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