Ayyavu v. Soma Sundaram Chettiar

There can be no doubt upon the facts as found by the Lower Court that the judgment-debtor, appellant before us, has been evading arrest for a long time. No less than 6 warrants were taken out for his arrest, and there is no difficulty in coming to the conclusion, as the Lower Court has done, that he has been wilfully evading arrest in order to avoid payment of the decree amount. According to the rulings of this Court and also of the Allahabad High Court those facts would amount to fraud within the meaning of Sect. 48 of the Civil Procedure Code, that is, wilful evasion of arrest under warrants taken out by the judgment-creditor is fraudulent prevention of the execution of a decree within the meaning of Sect. 48 (2) of the Civil Procedure Code. It is not necessary for the judgment-creditor to prove by positive evidence that but for the conduct of the judgment-debtor he would have realised the decree. The law on the subject was laid down in Annamalai v. Rangasami(1), although in that case there were other fraudulent acts as well on the part of the judgment debtor. This ruling has been followed in Abdul Khadir v. Ahammad Shaiwa Ravuthar(2), and Nathuram Sivaji v. Krishna(3). The same view of the law is taken in the Allahabad High Court in Mohsin Ali…(Decree-Holder); v. Masum Ali…(Judgment-Debtor).*(4). There is no doubt a dictum of Shephard, J. in Seshachalam Chetti v. Rajam Chetty(5), to the contrary. But it does not appear that the authorities on the point were brought to the notice of the learned Judge. Following the decisions mentioned above we must hold that there was fraud in the sense of Sect. 48 of the Civil Procedure Code, so as to give a fresh starting period of limitation. The appeal must be dismissed with costs.

Odgers, J.—I agree and I would only add a word as to the case in Seshachalam Chetti v. Rajam Chetti, cited by the learned Vakil for the appellant. It was a case before Mr. Justice Shephand and I think it is important to notice that as I understand the case there was no evidence of fraud and that the decision turned on that finding. In this case I agree with my learned brother, because there is ample evidence of fraud within the meaning of Sect. 48 of the Civil Procedure Code. It is quite clear to my mind that the case in Seshachalam Chetti v. Rajam Chetty, can have no bearing on the point before us. I also agree as to the effect of Madras and Allahabad decisions cited before us.

K.V.SAppeal dismissed.