Nathuram Sivaji Siltu and Another vs Krishna Rammolthy

The District Judge appears to us not to have correctly apprehended the meaning of the expression ''preventing the execution of the decree by

force or fraud'' used in Section 48 of the Civil Procedure Code. The word ''fraud'' has been always interpreted by this Court in a very liberal

sense; See Visalatchi Animal v. Sivasankara Tawker ILR (1881) M. 292, Annamalai v. Ranjasami ILR (1883) M. 365, Venkayya v.

Raghavachariar ILR (1897) M. 670 and Abdul Khadir v. Ahmed Shaiva Rowthen ILR (1912) M. 670. Any improper means resorted to in order

to prevent execution would amount to fraud. The decree-holder alleged in his application for execution that the Judgment debtor was hiding himself

in foreign territory in order to prevent execution. The execution diary shows that several warrants for the arrest of the debtor were returned

unserved. The Munsif was satisfied that the respondent was deliberately evading the process of the court, though he did not refer to the occasions

on which he did so. The prior execution proceedings ought to have been put in evidence and the parties ought to have been called upon to let in

any further evidence that they could in order that the question at issue might be properly decided. We set aside the orders of both the Courts

below and remand the petition for fresh disposal according to law. The costs hitherto incurred will abide the result.