Banarsi Prasad Chaudhury vs Kirtyanand Singh Bahadur and Others

Mohammad Noor, J.—This appeal is by the judgment-debtor and is directed against an order of a Subordinate Judge of Monghyr, holding that the execution case instituted before him was not barred u/s 48 of the Civil Procedure Code. The decree under execution was passed by the Subordinate Judge of Bhagalpur on 1st July 1918, and in or about April 1928, it was brought on transfer to Monghyr where an application for execution was made on 10th April 1928. Certain properties seem to have been attached in execution of the decree, but a claim to the property preferred on behalf of an idol was allowed on 25th December 1929, and apparently the execution could not proceed further. The decree-holder had to institute a suit under Order 21, Rule 63, for a declaration that the property, which he sought to attach and sell was in fact the property of the judgment-debtor and liable to be sold for satisfaction of the decree. The suit was decreed on 20th September 1932; and a week later, on 28th September 1932, the present petition for execution was filed.

The objection raised was that the application was barred u/s 48 of the Civil Procedure Code. The learned Subordinate Judge has held that as the decree-holder was prevented from executing the decree on account of the fraud of the judgment-debtor committed within 12 years of the date of the decree, the execution was not barred. The fraud consisted in falsely setting up a claimant and thereby forcing the decree-holder to fight out a civil suit. The judgment-debtor has preferred this appeal.

In order to appreciate the argument of the learned advocate who has appeared on behalf of the appellant, it is necessary to mention a few more facts. It seems that after the decree-holder was prevented from proceeding to sell the property on account of the claim having been allowed, he sought execution of the decree by the arrest of the judgment-debtor and an application to this effect was made on 18th June 1930.

Somehow or other this application was dismissed on 30th September 1981, but this Court ordered on 22nd March 1933 the execution to be revived, and in fact that application is still pending. It has been kept in abeyance till the present application for execution, which is the subject matter of the appeal, is disposed of.

The learned advocate contended that Section 48, Civil P.C., had no application, firstly, because the decree-holder was not prevented from execution, as in fact he proceeded to execute his decree by the arrest of the judgment-debtor and, secondly, because the institution of a suit by itself did not constitute fraud. As to the first contention as the learned Subordinate Judge has pointed out, it is open to a decree-holder to have his decree executed in any manner provided by law. If the decree-holder now finds that on account of the suit having been decided in his favour, he can pursue a certain property with some amount of certainty that the decree will be realized he cannot be forced to pursue his application for the arrest of the judgment-debtor. He may, if he likes do so if he fails to realize the decree by the sale of the property. As to his second contention that the institution of a suit does not constitute fraud the learned advocate has relied upon the case of Raghunath Prasad v. Kashi Prasad (1912) 18 IC 88.

There the institution of certain kinds of suits was on the facts of that case, hold not to constitute fraud. One of them was a suit by a person claiming title to the property on the foot of a mortgage, which suit ultimately was unsuccessful. It is obvious that if the claim of a third person is disallowed the decree-holder is not prevented from executing the decree and cannot, therefore, plead this as a ground for exclusion from the operation of Section 48. In this case now before us the claim was allowed, and the decree-holder was forced to bring a suit. Another kind of suit mentioned in the head-note as not constituting fraud was a suit instituted u/s 283, Civil P.C. of 1882 by the decree-holder who purchased a house in execution of his decree after the objection of the purchaser of the same property from the judgment-debtor had been allowed and which suit was afterwards successful. The head-note is somewhat misleading.

It appears from the body of the judgment that the claim of the third person was preferred and allowed after the decree-holder had purchased a property in execution of his decree, and then the decree-holder had to bring the suit for declaration of his title, which was successful. It is obvious that the suit could not have been u/s 283 of the old Code, but u/s 332 (now Order 21, Rule 103), as the claim and the suit were after the sale. It is obvious that the institution of such a suit could not have prevented the execution of the decree. I do not see any reason why the present case should not come within Section 48, Civil P.C.

In my opinion, therefore none of the contentions of the appellant is tenable. Apart from the applicability of Section 48, Civil P.C., this application for execution can safely be treated as a continuation of the application in which the property could not be sold on account of the claim having been allowed. This was exactly what was held in the case of Rudra Narain Guria v. Pachu Maity (1896) 23 Cal 437. No doubt, the question before the Calcutta High Court was not one u/s 48, Civil P.C., but under the Limitation Act. But the principle is exactly the same. There also a claim was allowed, and the decree-holder had to institute a suit for a declaration of his right to execute his decree against the property. After the suit was decreed the decree-holder filed a fresh application for execution.

Their Lordships held that that application must be treated as a continuation of the previous application because the previous application could not be proceeded with on account of a bar having been placed by the allowance of the claim; and once the bar was removed that execution could proceed and the fresh application was nothing more than an application to revive the proceeding which had to be stopped. Taking any view of the case, namely, whether we apply to it the exceptions mentioned in Section 48, Civil P.C., or treat the present application as a continuation of the previous application, the execution must proceed. The proceedings are not barred by limitation. I would dismiss this appeal with costs.

Luby, J.

I agree.