S. Pechiyammal v. N. Gnanasundaram Nadar

The Civil Revision Petition itself is taken up for disposal by consent of parties. The Civil Revision Petition is directed against the order in E.P No. 47 of 1991 in O.S No. 357 of 1970 on the file of the learned Principal District Munsif, Padmanabhapuram, dismissing the Execution Petitions as barred by limitation.

2. E.P No. 548 of 1979 was filed in O.S No. 357 of 1970 for realising the decree amount in the suit for recovery of mortgage amount. Final decree was passed on 7-11-1973. In the meanwhile, the judgment debtor filed a suit O.S No. 331 of 1975 for partition in respect of properties, including the mortgaged property, which is the subject matter of O.S No. 357 of 1970 and a decree was passed in the said partition suit on 30-6-1976. It is the case of the petitioner herein that the decree in O.S No. 331 of 1975 was passed ex-parte, without his knowledge. On coming to know of the same, the petitioner herein filed O.S No. 730 of 1981 for setting aside the ex-parte decree in O.S No. 331 of 1975 and O.S No. 730 of 1981 was decreed after contest on 27-6-1990. The present execution petition was filed after the decree in O.S No. 331 of 1975 has been set aside.

3. The objection raised by the respondent in the revision petition is that the Execution Petition is barred by limitation since the decree in O.S No. 357 of 1970 was passed on 7-11-1973 and the present execution petition was filed after a period of twelve years and therefore, the petition is barred by limitation. The lower court has accepted the contention of the respondent herein and dismissed the Execution Petition. This Civil Revision Petition is directed against that order.

4. Learned counsel for the petitioner herein submits that he is entitled to invoke the provisions of Section 17(2) of the Limitation Act. Section 17(2) of the Act reads as follows:—

“Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the Court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for exectution of the decree or order:

Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be”.

5. Learned counsel for the petitioner relied on a judgment of a Division Bench of this Court in Ramanathan v. Mahalingam (A.I.R 1935 Madras 8 = 40 L.W 694). The Division Bench held that 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 S. 48(2-A) 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. Where fraud is proved against one of the judgment-debtors, the decree-holder can avail of it even against the legal representative of such judgment-debtor.

6. Reliance is also placed in Walchand v. Yeshwant (A.I.R (36) 1949 Bombay 379) (DB). The Division Bench of the Bombay High Court observed as follows:—

“The word ‘fraud’ must be interpreted in a wider sense than that in which it is generally used in English law. If a judgment-debtor evades execution by dishonest stratagems it would be sufficient to constitute fraud within the meaning of S. 48. Civil P.C Thus where a judgment debtor attempted to conceal his property, to deny its ownership and to put forward a mere benamidar as its real owner, it was held that it amounted to a dishonest stratagem on the part of the judgment debtor and the execution of the decree being thus prevented by fraud was not barred by limitation under S. 48. ………………

(c) Limitation Act (1908) S. 14(2)-

‘Same Relief’ - xxx xxx

xxx xxx xxx

The principle of S. 14 is clear. If a suit or an application instead of being prosecuted in a Court with jurisdiction, is prosecuted in another Court which has no jurisdiction, then the time taken up in the Court without jurisdiction is to be excluded from the period of limitation. But the important thing to note is this that the Court which has no jurisdiction could have granted the necessary relief to the party if it did have jurisdiction. Therefore, the suit must be in respect of the same cause of action in this Court without jurisdiction as it is ultimately filed in the Court with jurisdiction. It is to be noted that the Legislature has advisedly used the expression ‘the same relief’, and not ‘similar relief’, and it is difficult to accept the contention that an application to adjudge the judgment debtor insolvent asks for the same relief as the application to execute a decree against the judgment-debtor. Therefore, the time spent in prosecution of the insolvency petition by the decree-holder in that Court, although that Court had no jurisdiction, cannot be excluded under S. 14.”

7. Learned counsel for the respondent has relied on a decision of the Supreme Court in Yeshwant v. Walchand (AIR 1951 S.C 16 = 64 L.W 353) which is against the judgment in Walchand v. Yeshwant (AIR (36) 1949 Bombay 379), wherein it is observed as follows:—

“In our opinion, the facts necessary to establish fraud under S. 18, Limitation Act, are neither admitted nor proved in the present case. Concealing from a person the knowledge of his right to apply for execution of a decree is undoubtedly different from preventing him from exercising his right, of which he has knowledge. Section 18, Limitation Act, postulates the former alternative. To read it as referring to an application for execution to proceed against a particular property would be destructive of the oneness of the decree and would lead to multiplicity of periods of limitation. It is true that Arts. 181 and 182, Limitation Act and S. 48, Civil P.C, should be read together. The Articles expressly refer to the Section. But they are independent or parallel provisions, different in their scope and object. As held in Kalyanasundaram Pillai v. Vaithilinga Vanniar (I.L.R (1939) Mad. 611: (A.I.R (26) 1939 Mad. 270). S. 48(2) = 49 L.W 881 extends the 12 years' period of closure by a further period of similar duration but the necessity of resort to Art. 182 is not thereby obviated. The decree-holder must have been taking steps to keep the decree alive and the only circumstance that could relieve him of this obligation is the existence of fraud under S. 18, Limitation Act. The learned advocate of the appellant asked how it could be possible for him to apply in execution when there was the fraud and whether the law contemplated that, even though the fraud prevented execution of the decree, he was to go on filing useless or futile applications every three years merely for keeping the decree alive. The answer is simple, the fraud pleaded, viz., suppression of ownership 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 1940; and in his answers in cross-examination, he has admitted 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 knowledge of the ownership. To quote two sentences from his deposition:

“I had suspected that defendant 1 was the the real owner of the business all the while. But I had no positive knowledge or information till 1946. I could not take any step from attaching the defendant's business till 1946 as I had no evidence to prove the defendants fraud till then”.

There is no obligation on the judgment-debtor to post the decree-holder with all details of his properties, it is the decree-holder's business to gather knowledge about the properties so that he can realise the fruits of his decree”.

After considering the materials before it, the Supreme Court ultimately concurred with the view expressed by the Division Bench of the Bombay High Court and dismissed the appeal.

8. Therefore, I am unable to agree with the contention of the learned counsel for the respondent since I am of the opinion that there was fraud committed by the respondent herein which prevented the petitioner from filing the Execution Petition and realising the decree amount within a period of twelve years. Therefore, the time taken for setting aside the decree in O.S No. 331 of 1975 has to be excluded. The decree in O.S No. 331 of 1975 was passed on 30-6-1976 and the said decree was set aside on 27-6-1990 in O.S No. 730 of 1981. If the period from 30-6-1976 upto 27-6-1990 is excluded, then the decree made in O.S No. 357 of 1970 is within a period of twelve years.

9. Accordingly, the order of the lower court is not correct and the same is set aside. The civil revision petition is allowed. No costs.

KA/RR/VCS.