|CITATION||1951 AIR 16|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice N. Chandrasekhar Aiyar|
|DATE OF JUDGEMENT||01.12.1950|
The case revolves around Articles 182, 14 and 18 of the Limitation Act and Section 48 of the Civil Procedure Code, which provide for a rule of limitation and prescribed a period of 12 years for an application for execution of decrees and orders.
The facts of the case are as follows: An application was filed for execution of a decree was made after the expiry of 12 years from the date of the decree and 3 years from the date of the final order on the last previous application for execution. It was contented that the judgment debtor had fraudulently purchased a business and had prevented from being proceeded against in execution by the decree-holder. The High Court found that, as the decree-holder was prevented by the fraud of the judgment-debtor from executing the decree, the application was not barred under Section 48 of the Code, but as it was made more than 3 years from the date of the order on the last application it was barred under Article 182 of the Limitation Act.
The main issue in the case was: Whether or not the Limitation Act would be applicable to the facts of the case.
Summary of court decision and judgment
In the case the subordinate judge held that the execution application was not barred, however, on appeal to High Court it reversed this decision, holding that it was not a conditional decree, that the steps taken by Tendulkar to execute this decree were of no avail, and that the insolvency proceedings were for a different relief altogether, so that section 14(2) of Limitation Act could not be invoked.
The decree-holder appealed and contended for the first time before the Supreme Court that fraud for the purpose of Section 48 of Civil Procedure Code was proved and so Section 18 of the Limitation Act were applicable to the case and his application was not barred under Article 189 as it were made within three years of the date when he became aware of the fraud and the proper article applicable was Article 18.
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. 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, 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.
Section 18 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.
The facts necessary to establish fraud under Section 18 of the Limitation Act were neither admitted nor proved in the present case. It was thus clear that the appellant could not get the benefit of Section 18 of the Limitation Act.
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. Currently, Section 48 of the code enacted a rule of limitation and prescribed a period of 12 years for an application for execution of decrees and orders. It has since been repealed by Section 28 of the Limitation Act, 1963.