# YESWANT DEORAO DESHMUKH v. WALCHAND RAMCHAND KOTHARI

- **Citation:** [1950] 1 S.C.R. 852
- **Court:** Supreme Court of India
- **Decided:** 1950
- **Case number:** Civil Appeal No. 37 of 1950
- **Bench:** Shri Harilal Kania C.J, Das, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/yeswant-deorao-deshmukh-v-walchand-ramchand-kothari-159
- **Pages:** 17

## Headnote

[1950]
Limitation Act (II of 1908), ss. 14 (21, 18, Art. 182-Giuil Pro·
C1ldure God• (V of 1908), s. 48-Execution of decree-Application
after 12 years from decree and 3 years from order on last application-Fraudulent concealment of property to prevent executionMaintainability of application-Limitation-Fraud preventing execution against particular property-"Whether saves limitation under
Art. 182-Applicability of s. 18-Decree direoting payment of deficit
court fe. b•fore execution-Whether conditional decree-Starting
point of limita.tian-Time spent in proceedings to adjudge judgmentdebtw insolvent, whether should be excluded.
An application for execution of a decree wos made after the
expiry of 12·years from the doto of tbe decree and 3 years from the
date of the final order on tbe last previous application jor execution.
The decree-holder contended that the judgment-debtor had
fraudulently purchased a business in the name of a stranger and
bad conducted the same in the name of the latter with a view to
prevent the assets of the business from being proceeded against
in execution by the decree-holder and that therefore under s. 48
of the Civil Procedure Code be was entitled to make an application even after the expiry of 12 years. 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 s. 48 of the Code, but as it was made more than
3 years from the date of the order on t.he last application it was
barred under Art. 182 of the Limitation Act. The decree-holder
appealed contending for the first time before the Supreme Court
that as fraud for the purpose of s. 48 of Civil Procedure Code was
proved, e. 18 of the Limitation Act was applicable to the case and
-
his application was not barred under Art. 182 as it was made
within three years of the date when he became aware of the
fraud and the proper article applicable was Art. 181 :
Held, (i) that the question whother on the proved facts s. 18
was applicable ta the case was a pure question of law and the
deoree-hol<ler was entitled ta rsise the question before the Supreme
Court, even though he had not raised it before the lower courts;
(ii) though s. 48, Civil Procedure Code, and Arts. 181 and 182 of
the Limitation Act dealt with the time limit for making applica·
tions for execution of decrees and should be read together, they
were different in their scope and object, and the fact that the
•Pplication was not barred under s. 48, Civil Procedure Code, did
not obviate the necessity of considering whether it was barred
S.C.R.
SUPREME COURT REPORTS
853
under Art. 182; (iii) that, as the fraud committed by the judg.
1950
ment-debtor did not in any way conceal from the decree-holder
the knowledge of his right to make an application for execution of Y•awanl .Deorao
the decree but only prevented him from exercising that rigbt in
.Deshmukh
respect of a particular property, s. 18 bad no application to the
v.
case, and the application was therefore barred under Art. 182 of
Walchand
the Limitation Act; (iv) the fact that there was no provision in
Ramchand
Art. 182 for cases where the judgment-debtor had committed a
Kothari.
fraud as in the present case did not render that article inapplicable and bring the case within the purview of Art. 181 as Art. 182
has to be read with the general provisions contained in s. 18
relating to cases where there is fraud.
Held also, (i) A decree which provides that the plaintiff should
pay the deficient court fees before executing the decree is not a
conditional decree and time for making an application for execu~
tion of such a decree runs from the date of the decree, and not
from the date on which the plaintiff pays the deficit court fees.
(ii) The period of time during which the decree-holder was
prosecuting proceedings for adjudging the judgment-debtor an
insolvent cannot be excluded under s. 14 (2) of Limitation Act, in
computing the period of limitation

## Text

1960
Deo. l.
852
SUPREME COURT REPORTS
YESWANT DEORAO DESHMUKH
v.
WALCHAND RAMCHAND KOTHARI.
[SHRI HARILAL KANIA C.J., DAS and
CHANDRASEKHARA AIYAR JJ.]
[1950]
Limitation Act (II of 1908), ss. 14 (21, 18, Art. 182-Giuil Pro·
C1ldure God• (V of 1908), s. 48-Execution of decree-Application
after 12 years from decree and 3 years from order on last application-Fraudulent concealment of property to prevent executionMaintainability of application-Limitation-Fraud preventing execution against particular property-"Whether saves limitation under
Art. 182-Applicability of s. 18-Decree direoting payment of deficit
court fe. b•fore execution-Whether conditional decree-Starting
point of limita.tian-Time spent in proceedings to adjudge judgmentdebtw insolvent, whether should be excluded.
An application for execution of a decree wos made after the
expiry of 12·years from the doto of tbe decree and 3 years from the
date of the final order on tbe last previous application jor execution.
The decree-holder contended that the judgment-debtor had
fraudulently purchased a business in the name of a stranger and
bad conducted the same in the name of the latter with a view to
prevent the assets of the business from being proceeded against
in execution by the decree-holder and that therefore under s. 48
of the Civil Procedure Code be was entitled to make an application even after the expiry of 12 years. 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 s. 48 of the Code, but as it was made more than
3 years from the date of the order on t.he last application it was
barred under Art. 182 of the Limitation Act. The decree-holder
appealed contending for the first time before the Supreme Court
that as fraud for the purpose of s. 48 of Civil Procedure Code was
proved, e. 18 of the Limitation Act was applicable to the case and
-
his application was not barred under Art. 182 as it was made
within three years of the date when he became aware of the
fraud and the proper article applicable was Art. 181 :
Held, (i) that the question whother on the proved facts s. 18
was applicable ta the case was a pure question of law and the
deoree-hol<ler was entitled ta rsise the question before the Supreme
Court, even though he had not raised it before the lower courts;
(ii) though s. 48, Civil Procedure Code, and Arts. 181 and 182 of
the Limitation Act dealt with the time limit for making applica·
tions for execution of decrees and should be read together, they
were different in their scope and object, and the fact that the
•Pplication was not barred under s. 48, Civil Procedure Code, did
not obviate the necessity of considering whether it was barred
S.C.R.
SUPREME COURT REPORTS
853
under Art. 182; (iii) that, as the fraud committed by the judg.
1950
ment-debtor did not in any way conceal from the decree-holder
the knowledge of his right to make an application for execution of Y•awanl .Deorao
the decree but only prevented him from exercising that rigbt in
.Deshmukh
respect of a particular property, s. 18 bad no application to the
v.
case, and the application was therefore barred under Art. 182 of
Walchand
the Limitation Act; (iv) the fact that there was no provision in
Ramchand
Art. 182 for cases where the judgment-debtor had committed a
Kothari.
fraud as in the present case did not render that article inapplicable and bring the case within the purview of Art. 181 as Art. 182
has to be read with the general provisions contained in s. 18
relating to cases where there is fraud.
Held also, (i) A decree which provides that the plaintiff should
pay the deficient court fees before executing the decree is not a
conditional decree and time for making an application for execu~
tion of such a decree runs from the date of the decree, and not
from the date on which the plaintiff pays the deficit court fees.
(ii) The period of time during which the decree-holder was
prosecuting proceedings for adjudging the judgment-debtor an
insolvent cannot be excluded under s. 14 (2) of Limitation Act, in
computing the period of limitation for making an application for
executing the decree.
Judgment of the Bombay High Ooud affirmed.
APPELLATE JURISDICTION: Civil Appeal No. 37 of
1950.
Appeal from a judgment of the Bombay High Court
(Chagla C.J. and Dixit J.) in Appeal No. 281 of
1947 ..
K. S. Krishnaswami Aiyangar (K.
Narasimha
Aiyangar, with him) for the appellant.
M. C. Setalvad, Attorney-General for India, (B. Sen,
with him) for the respondent.
1950. December I. The Judgment of the court
was delivered by
CHANDRASEKHARA AIY AR J.-This appeal, preferred Ohandra,.khara
from the decree of the Bombay High Court in Appeal
Aiyar J.
No. 281 of 1947, raises the question whether an execution application seeking to execute a final decree, passed
by the 1st Class Subordinate Judge's Court at Poona,
on 6th December, 1932, for a sum of Rs. 1,24,215 and
odd, is barred by limitation. The decree was made in
a suit for dissolution of a partnership and the taking
of accounts.
;i,,
854
SUPREME COURT REPORTS
[1950)
1950
The execution application was filed on 4th October,
Y
-
1946, and the amount stated to be due under the decree
"~:;~m~~~;ao on that date was Rs. 2,30,986 and odd. The previous
v.
execution application No. 946 of 1940 filed in the Court
Walchand
of the 1st Class Sub-Judge, Sholapur, to which the
Ramchand
decree had been transferred for execution, was made
Kothari
on 24th June, 1940. It was dismissed on 9th September,
Chan;:;;,khara 1940, for non-prosecution.
Aiyar J.
It would thus be seen that the present application
was filed after the lapse of 12 years from the date of
the final decree and 3 years from the date of the final
order on the previous application. To surmount the
bar of limitation, the decree-holder, who is the appellant before us, raised four contentions: firstly, that
the final decree, which provided tha:t the plaintiff
should pay the deficit court fees on the decretal amount
before the execution uf the decree, was a conditional
decree, and that time began to run from the date when
the condition was fulfilled on 5th December, 1935, by
payment; secondly, that the period occupied by the
insolvency proceedings from 10th August, 1937, to
14th December, 1942, initiated by the decree-holder to
get the first judgment-debtor Walchand Ramchand
Kothari (with whom alone we are now concerned)
adjudged an insolvent, should be excluded under section 14 (2) of the Limitation Act ; thirdly, that the
period occupied by one Tendulkar, who was the creditor of the present decree-holder, in seeking to
execute this decree, should be deducted ; and lastly,
that as the judgment-debtor prevented execution of
the decree against the 'Prabhat' newspaper by suppressing his ownership of the same, a fresh starting
point of limitation springs up in the decree-holder's
favour from the date of the discovery of the fraud.
The Subordinate Judge held that the execution
application was not barred, agreeing with every one of
these contentions. On appeal to the High Court
Chagla C.J. and Dixit J. 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
S.C.R.
SUPREME COURT REPORTS
855
different relief altogether, so that section 14 (2) of the
19~0
Limitation Act could not be invoked. Thev concurred
with the finding of the Subordinate Judge that the Yeswant Deorao
.
b
dh
·
f
d
Deshmukh
judgment-de tor prevente t e execut10n o the ecree
v.
within 12 years by fraudulent concealment of his
watchand
ownership of the 'Prabhat' newspaper and that the
Ramchand
twelve years' bar of limitation did not apply ; but they
Kothari.
held that the application was barred under article 182
--
of the Limitation Act, as more than three years had Cha-;r•se~kara
run from 9th September, 1940, the date of the dismissal
•Y•• ·
of the previous execution application, before the present
application was filed on 4th October, 1946.
Points 1 to 3 above mentioned are of no avail to the
appellant. The decree was not a conditional one in
the sense that some extraneous event was to happen on
the fulfilment of which alone it could be executed. The
payment of court fees on the amount found due was
entirely in the power of the decree-holder and there
was nothing to prevent him from paying it then and
there; it was a decree capable of execution from the
very date it was passed. There could be no exclusion
of the time occupied by the insolvency proceedings
which clearly was not for the purpose of obtaining the
same relief. The relief sought in insolvency is obviously
different from the relief sought in the execution application. In the former, an adjudication of the debtor as
insolvent is sought as preliminary to the vesting of all
his estate and the administration of it by the Official
Receiver or the Official Assignee, as the case may be,
for the benefit of all the creditors ; but in the latter,
the money due is sought to be realized for the benefit
of the decree-holder alone, by processes like attachment
of property and arrest of person. It may be that
ultimately in the insolvency proceedings the decreeholder may be able to realize his debt wholly or in
part, but this is a mere consequence or result. Not only
is the relief of a different nature in the two proceedings
but the procedure is also widely divergent.
The steps taken by the appellant's creditor Tendulkar to attach this decree and put it in execution do not
save limitation. His darkhast for attachment of the
856
SUPREME COURT REPORTS
[1950]
l950
present decree was on 3rd April, 1940, and for execution
Y
-t-D
of the present decree was on 1st February, 1944,
es wan
eorao
.
.
Deshmukh
more than 3 years from 9th September, 1940, which 1s
v.
the date of the dismissal of the appellant's prior
Walehana
execution petition.
~:t~'::~
The learned Advocate for the appellant therefore
__
devoted most of his argument to the fourth contention
Chandrasekhara set forth above. That the judgment-debtor respondent
Aiyar J.
suppressed his ownership of the 'Prabhat' newspaper
and fraudulently prevented the execution of the decree
against this property has been found by both the
Courts below, as stated already. It was strenuously
urged that the fraud so found is not merely fraud as
broadly interpreted under section 48 (2), Civil Procedure Code, but also strict or concealed fraud within the
meaning of section 18 of the Limitation Act.
In this
connection, it is as well to set out very briefly the
nature of the concealment and the steps taken by the
judgment-debtor to achieve the same. He purchased
the 'Prabhat' newspaper with all its assets and goodwill from its previous owner
one Purushottam
Mahadev in 1938 under the letter marked Exhibit 129.
He opened current accounts in several banks, and gave
the name of one Abhyankar as the owner of the paper,
but he was himself operating on those accounts. One
Rajwade, a friend of the judgment-debtor, was shown
as the printer and publisher of the paper. Even in his
supplementary written statement filed in Court in
answer to the present execution, marked Exhibit 88
(page 53 of the printed book), the defendant asserted
in paragraph 2 that he became the owner of the newspaper only in April, 1944, and that previously he had
no ownership or right in the same. He did not go into
the witness box to refute the allegation that he was the
owner ever since the purchase of the paper in 1938 and
that he opened accounts in the names of other people
on which he was operating for his own benefit. On
these facts, the Subordinate Judge found as follows:-
"l think on the whole that the evidence establishes
beyond doubt that the judgment-debtor had concealed
bis proprietary interest in bis newspaper called
S.C.R.
SUPREME COURT REPORTS
857
'Prabhat' from June, 1938, to April, 1944.
The only
rn5o
purpose for which the property could have been con-
-
cealed in this w;iy was probably the fear that the decree-Yes;•:t n;:""'
holder would pounce upon it if he came to know about
" ~u
it. The decree-holder came to know of this fraud after
Walchand
April, 1944 ; for thereafter the judgment-debtor made
·Ramchand
an open declaration that the newspaper belonged to him.
Kothari.
I think therefore that this fraud has prevented the 0h d-kh
.
.
an rase ara
decree-holder from executmg the decree agamst some
Aiyar J.
property of the judgment-debtor." In this finding,
the High Court concurred. After referring to the
stratagem adopted by the judgment-debtor in Bhagu
jetha v. Malick Bawasaheb('), the learned Judges
observed:-
" In this case, in our opinion, the stratagem is much
more dishonest. The attempt on the part of the judgment-debtor was to conceal his property, to deny its
ownership and to put forward a mere benainidar as the
real owner of that property. In our opinion, therefore,
'
the execution of the decree is not barred under
section 48.
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."
On the strength of this concurrent finding, Mr.
Krishnaswami Iyengar for the appellant argued that
the fraud fell within the scope of section 18 of the
Limitation Act and that if it were so, he was out of
.,-
the woods, inasmuch as the proper article to apply
would be article 181 of the Limitation Act. 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. He was not in a position to
seek even the arrest of the judgment-debtor as he had
got himself declared in the insolvency proceedings as
an " agriculturist " within the meaning of the Deccan
Ill 1.i:..R, 9 Rom. sis.
!10
858
SUPREME COURT REPORTS
[1950]
1950
Agriculturists' Relief Act, alleging falsely that he was
-t-D
not in receipt of any income by way of salary or
Yeswan
eorao
.
D"hmukh
remuneration from the newspaper concerned and that
v.
he was mainly dependent on the income of his family
Walcha•a
lands for his maintenance.
Romchand
There can be no question that the conduct of the
Kothtir\.
__
respondent was fraudulent within the meaning of
Chandrasekhara section 48 (2) of the Civil Procedure Code.
Though
Aiyar J.
benami transact.ions are common in this country and
there is nothing per se wrong in a judgment-debtor
purchasing property in another man's name, we have
to take into account all the circumstances attending
the purchase and his subsequent conduct for finding
out whether it was part of a fraudulent scheme on his
part to prevent the judgment-creditor from realizing
the fruits of his decree. Fraudulent motive or design
is not capable of direct proof in most cases ; it can
only be inferred. The facts before us here leave no
room for doubt that the true object of the judgmentdebtor was to prevent the execution of the decree
against the ' Prabhat ' newspaper which he had purchased. Other persons were shown as the printer and
the publisher of the newspaper, while Abhyankar was
mentioned as the proprietor. The judgment-debtor,
was, however, operating on those accounts for his own
benefit. In the Insolvency Court, he set up the plea
that he was an agriculturist, by suppressing the truth
about his ownership of the paper, and pretending that
his income was mainly, if not solely, from the family
lands. He kept up this show till April 1944, when
probably he felt that he was safe from the reach of
the judgment.creditor. Even in his answer to the
execution application, out of which this appeal has
arisen, he had the hardihood to assert that he was not
the owner of the paper till April 1944. It should also
be remembered that he did not get into the witness
box to explain what other necessity there was for all
this camouflage, except it be to cheat the appellant of
his dues under the decree.
Mr. Setalvad, the learned Attorney-General, who
appeared for the respondent, pointed out tha_t there
S.C.R.
SUPREME COURT REPORTS
859
was no benami purchase and that the holding out of
1950
Abhyankar as the proprietor of the' Prabhat' did not
-.-
amount to any false representation or misrepresenta- Yes;•~ n::rao
tion to the judgment-creditor, as the accounts on
":,u
wl1ich reliance was placed were accounts opened in the
Walchana
banks and were not ordinarily available for inspection
Ramchana
by third parties. This line of reasoning is hardly conKothari.
vincing, when we have to consider whether what is 01
d-kh
.
.
~an raae
ara
attnbuted to the ]Udgment-debtor does not amount to
Aiuar J.
a fraudulent scheme or device for preventing execution
of the decree that had been passed against him for a
very large sum of money. In the very nature of things,
fraud is secret in its origin or inception and in the
means adopted for its success. Each circumstance by
itself may not mean much, but taking all of them
together, they may reveal a fraudulent or dishonest
plan.
It would be convenient to set out here in extenso
section 48, Civil Procedure Code, and section 18 of the
Limitation Act before we proceed to consider the
soundness of the arguments advanced by both sides in
support of the positions they have taken up.
Section 48, Civil Procedure Code (which corresponds
to section 230 of the Code of 1882), is in these terms:-
" 48. (1) Where an application to execute a decree
not being a decree granting an injunction has been
made, no order for the execution of the same decree
shall be made upon any fresh application presented
after the expiration of 12 years from
(a) the date of the decree sought to be executed, or,
(b) where the decree or any subsequent order directs
any payment of money or the delivery of any property
to be made at a certain date or at recurring periods,
the date of the default in making the payment or
delivery in respect of which the applicant seeks to
execute the decree.
(2) Nothing in this section shall be deemed-
(a) to preclude the Court from ordering the execution
of a decree upon an application presented after the
expiration of the said term of twelve years, where the
860
SUPREME COURT REPORTS
[1950]
t95o
judgment-debtor has by fraud or force prevented the
Y.
--
execution of the decree at some time within twelve
8'Want Deorao
.
·
d
f
h
l"
D"hmukh
years immediately before the
ate o t e app 1.
v.
cation; or
Walokand
(b) to limit or otherwise affect the operation of
Ramchanci
article 183 of the first Schedule to the Indian Limita.
Kothari.
tion Act, 1908."
Ohandrasekhara
Section 18 of the Limitation Act, 1908, runs thus:-
Aiyar J.
" 18. \Vhere any person having a right to institute a
suit or make an application has, by means of fraud,
been kept from the knowledge of such right or of the
title on which it is founded,
or where any document necessary to establish such
right has been fraudulently concealed from him,
the time limited for instituting a suit or making
an application -
(a) against the person guilty of the fraud or acces.
sory thereto, or
{b) against any person claiming through him
otherwise than in good faith and for a valuable
consideration,
shall be computed from the time when the fraud
first became known to the person injuriously affected
thereby, or, in the case of the concealed document,
when he first had the means of producing it or compelling its production."
Whether the fraud of the judgment-debtor should
actually prevent the execution of the decree or whether
it is enough if the fraud has been committed without
resulting in actual prevention is a question on which
there has been some divergence of opinion in the
decided cases. The former view was taken in an early
Madras case Kannu Pillay v. Chellathammal and
Others(') and receives support from the decision
reported in Sri Raja Venkata Lingama Nayanim
Bahadur Varu and Another v. Raja Inuganti Rajagopala Venkata Narasimha Rayanim Bahadi~r Varu
and five Others(') to which our learned brother Mr.
Justice Patanjali Sastri was a party. The latter view
11) [1898) M.L.J, 208.
12) I. L.R. 1947 M•d. 6~5.
S.C.R.
SUPREME COURT REPORTS
861
is indicated in M. R. M.A. S. P. Ramanathan Chettiar
1950
v. J.lahalingam Che/ti(') by a Bench of which Sir
--D. . 1
. J
b
·
Yeswant
eorav
Madhavan Nair . was a mem er. It is not necessary
D hmukh
to determine which view is correct, as we have here
" •.
definite findings of both the Courts below that there
Walchand
was fraud preventing the execution of the decree
Ramchand
within the meaning of Section 48 of the Civil Procedure
Kothari.
Code.
Chandrastkhilra
The appellant thus escapes the bar of the 12 years'
tl.iyar J.
period and he has a fresh starting point of limitation
from the date of the fraud for section 48 of the Civil
Procedure Code. In other words, the decree-holder has
another 12 years within which he can execute his
decree.
Having thus got over the difficulty in his way ·under
section 48 of the Code of Civil Procedure, he has next
to meet the objection under the Limitation Act. On
behalf of the appellant, it was urged that section 18
of the Limitation Act applied to the facts and that
the
right to apply
accrued to the appellant
when the fraud by the judgment-debtor became
known to him in 1946.
No reliance was placed on
section 18 of the Limitation Act in the courts below
and no reference to it is found in the grounds of appeal
to this court. It is however mentioned for the first
time in the appellant's statement of the case.
If the
facts proved and found as established are sufficient to
make out a case of fraud within the meaning of sec.
tion 18, this objection may not be serious, as the
question of the applicability of the section will be
only a question of law and such a question could be
raised at any stage of the case and also in the final
court of appeal. The following observations of Lord
Watson
in
Connecticut
Fire Insurance
Co. v.
Kavanagh (')are relevant. He said: "When a ques.
tion of law is raised for the first time in a court of last
resort upon the construction of a document or upon
facts either admitted or proved beyond controversy,
it is not only competent but expedient in the interests
of justice to entertain the plea.
The expediency of
(I) I.L.R. 58 Mad. 31 l.
121 [18S2] A.O. 4VS.
862
SUPREME COURT REPORTS
[1950]
1950
adopting that course may be doubted when the plea
--
cannot be disposed of without deciding nice questions
Y6'wa•t Deo,.ao f f
.
.d .
h. h th
t
f
It•
t
D 1
kh
o
act m cons1 enng w 1c
e cour o u 1ma e
"~~w
review is placed in a much less advantageous position
Walohand
than the courts below."
Ramchand
Mr. Seta\vad, however, urged that the appellant
Kothan.
should not be allowed to rely on section 18 now for the
Ghan;;;.;;,khara first time and that even if fraud within the meaning
Aiyar J.
of that section had been pleaded the respondent might
have adduced counter-evidence by himself going into
the witness box or otherwise. Accorc!ing to him, the
approach to the question of fraud under section 18 of
the Limitation Act is quite different from the approach
under section 48 of the Civil Procedure Code. There
may be cases where the fraud alleged and found is
fraud in the wider sense of the term within the meaning of section 48 (2) of the Civil Procedure Code, but
the same facts do not amount to fraud as strictly
construed under section 18 of the Limitation Act. The
fact that the decree-holder in the lower courts relied on
section 48, Civil Procedure Code, only does not prevent him from relying on section 18 of the Limitation
Act if the facts necessary to be established for bringing
in the assistance of section 18 of the Limitation Act
are admitted, or proved. It is not disputed that the
fraud contemplated by section 18 of the Limitation
Act is of a different type from the fraud contemplated
by section 48 (2) of the Civil Procedure Code.
The
wording of section 18 which requires the fraud "to prevent knowledge of the right to make the application"
is necessarilv of a different nature from the fraud
which prevents the decree-holder from making an
application for execution.
Concedi!'g to the appellant the right to rely on section 18 of the Limitation Act even at this late stage,
let us see if it is really of any help to him on the facts
found. The section has been quoted already. It
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
S.C.R.
SUPREME COURT REPORTS
863
execution of a decree like the one before us is a single
J950
and indivisible right, and not a composite right, Y
--D
· ·
f d"ff
11
· h
db
d
h
eswrnt
eorao
cons1stmg o , 1 erent. sma er ng ts an
ase on t e
Deshm .. kh
decree-holder s remedies to proceed against the person
v.
of the judgment;debtor or his properties, moveable
W•lchand
and immoveable. To give such a meaning would be
RamchMd
to split up the single right into parcels and to enable
Kothari.
the decree-holder to contend that while his rib" ht to 01
d--kh
.
d
.
. l
.
f
ianras~ ara
procee
agamst a part1cu ar item o
property is
Aiyar J.
barred, it is not barred in respect of other items.
\Ve would then be face to face with different periorls
of limitation as regards one and the same decree.
An
interpretation which lead> to this result is prima
facie unsound. Both sides agTeed that this is the
true position, but they reached it from slightly varying
standpoints.
According to
the appellant, fraud
even with reference to one property gives him a
further extension of 12 years under section 48 (2) as
regards the whole decree and it is not necessary for
him to show that he had proceeded against the other
properties of the judgment-debtor. According to the
respondent, the fraud must consist in the concealment
of the knowledge of the decree-holder's right to apply
for execution of the decree and it is not enough to
prove or establish that the fraud prevented him from
proceeding against a specific item. The two contentions, lead to the same conclusion about the indivisibility of the decree, but along different lines.
In our opinion, the facts necessary to establish fraud
under section 18 of the 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 of the 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 articles 181 and 182 of the Limitation Act and section 48,
864
SUPREME COURT REPORTS
[1950)
1950
Civil Procedure Code, should be read together. The
-
articles expressly refer to the section. But they are
Y"want Deorao · d
d t
ll 1
' ·
d'ff
t ·
h ·
D h
kh
m epen en
or para e prov1s1ons,
1 eren m t eir
es ;.u
scope and object.
As held in Kalyanasundaram
Walchana
Pillai v. Vaithilinga Vanniar (1) section 48 (2) extends
Ramohand
the 12 years' period of closure by a further period of
Kothad.
similar duration but the necessity of resort to artich
d-,
1•
cle 182 is not thereby obviated. The decree-holder
an rase < i ,.ra
.
.
4;yar J.
must have been takmg steps to keep the decree alive
and the onlv circumstance that could relieve him of
this obligatfon is the existence of fraud under section 18 of the 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. namely 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 cro"s-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
(lJ I.LJ~. 19.i9 i\lad. 611.
S.C.R.
SUPREME COURT REPORTS
865
knowledge of the ownership. To quote two sentences
1950
from his deposition : "I had suspected that defendant
--
N
I
h
1
f h b .
ll
h
h.
Y.,want D•orao
o.
was t e rea owner o t e usmess a
t e w Ile.
D h
kh
But I had no positive knowledge or information till
".~"
1946" ....... " I could not take any step for attaching
Walchand
the defendant's business till 1946 as I had no evidence
Ramchand
to prove the defendant·s fraud till then." There is
Kotha•·i.
no obligation on the judgment-debtor to post the Oh
d --;.h
decree-holder with all details of his properties; it is the
a~i;:~ J. ara
decree-holder's business to gather knowledge about
the properties so that he can realise the fruits of his
decree.
In dealing with this evidence, Mr. Krishnaswami
Iyengar relied on the Privy Council decision, Rahiinbhoy
v. Turner in 20 I. A. I and referred to the following
observation of Lord Hobhouse at page 5 : -
"But their Lordships consider, and in this they
agree with both the Courts below, that all that the
appellant Rahimbhoy has done is to show that some
clues and hints reached the assignee in the year 1881,
which perhaps, if vigorously and acutely followed up,
might have led to a complete knowledge of the fraud,
but that there was no disclosure made which informed
the mind of the assignee that the insolvent's estate
had been defrauded by Rahimbhoy of these assets in
the year 1867."
The passage cited does not apply here because the
appellant admits knowledge, which is more than a mere
suspicion, but states that he had no evidence to
prove the defendant's ownership. In any event, it
has not been established within the meaning of section
18 of the Limitation Act that the fraud alleged and
proved kept back from him the knowledge of his right
to execute the decree.
It is thus clear that the appellant cannot get the
benefit of section 18 of the Limitation Act. It was
next argued on behalf of the appellant that under section 48(2) of the Civil Procedure Code, because of the
fraud of the respondent the appellant got a fresh
starting point of limitation for the Limitation Act also
q1
866
SUPREME COURT REPORTS
[1950]
1950
and therefore the starting point contemplated in the
third column of the schedule to the Limitation Act
YmDoanht D•kohraorelating to a1,plications for execution should be the
e~ mu
.
v.
date when the fraud was discovered by the appellant.
Walchand
In other words, it was argued that the effect of section
Ramchand
48 was not merely to make the 12 years' period start
Kothari.
from the discovery of fraud for the purpose of section
G
d--kl
48(2) of the Civil Procedure Code but also to give a
han rast iara
h
.
.
f
h
h d 1
h L' .
.
Aiyar J.
Ires startrng pornt or t e sc e u e to t e
1m1tat10n
Act.
This argument cannot be accepted. If a man
is prevented from making an application, because of
the fraud of the debtor, he 1s not necessarily prevented
from knowing his right to make the application. By
the enactment of section 18, the Legislature has distinctly contemplated that for the Limitation Act the
starting point is changed on the ground of fraud, only
when the knowledge of the right to make the application is prevented by the fraud of the judgmentdehtor.
Having the knowledge that he had the right
to make the application, if the judgment-debtor
prevents the decree-holder from knowing the existence
of certain properties against which the decree could be
enforced, the case is clearly not covered by the words
of section 18 of the Limitation Act. Therefore the
argument advanced on behalf of the appellant is
unsound.
It was urged that the various starting points mentioned in the third column to article 182 of the Limitation
Act cannot apply because none of them specify a fresh
starting point for execution acquired on the ground of
the fraud of the judgment.debtor. This argument, in
our opinion, instead of helping the appellant, goes
against him.
Such a provision in the third column in
the article relating to execution of decrees is not
necessary because provision for such a contingency is
made in section 18. Affirmatively, by the inclusion of
section 18 in the Limitation Act, and, negatively, by
not providing for a separate period of limitation in the
case of the fraud of the judgment-debtor in the third
column in the articles, the Legislature has clearly
indicated that unless advantage could be taken by the
S.C.R.
SUPREME COURT REPORTS
867
decree-holder under section 18 on the ground of the
1960
fraud of the judgment-debtor, fraud does not give any
--
th
1. f
d
h L"
"t ·
A t
Th"
h
f Yeswant Deorao
o er re. 1e un ~rt e 1m1 a_t10n
c :
IS _sc eme o
Deshmukh
the Legislature 1s not inconsistent with sect10n 48 of
v.
the Civil Procedure Code.
The two provisions in the
Walchand
two Acts have to be read as related to the same subject
Ramcha><d
but dealing with two differents aspects.
Without
Kothari.
section 48 of the Civil Procedure Code a decree-holder,
--
.f h
d
l"
·
· d b
· 1 181
011andrasekhara
1 e ma e app 1cat10ns as requJre
y artic e
or
A.
J
182 of the Limitation Act, could keep his decree alive
•var ·
for an indefinite period. The Legislature, as a matter
of policy, ruled that a decree of a civil court (but
excluding the High Court) shall not be kept alive for
more than 12 years, although all necessary steps are
taken under the Limitation Act to keep the decree
alive and operative. That is one limit to the right of
the decree-holder to enforce the decree of the court.
The second limitation to his right, which is independent of the first, is that he must keep the decree alive
under article 182 or 181, as the case may be.
In the
case of the fraud of the judgment-debtor provision is
made in section 48(2) for enlarging the 12 years period
prescribed under section 48.
For defeating the plea
of the bar of limitatio:1 under the Limitation Act, in
the case of fraud of the judgment-debtor, provision is
found in section 18 of the Limitation Act. If the
particular case of fraud set up and proved is not covered by those words, there is no protection against the
same in the Limitation Act.
Read in that way, the
two legislative provisions are neither conflicting nor
overlapping; and they
are capable of operating
harmoniously, as they deal 11ith different situations
and circumstances. The argument advanced on behalf
of the appellant that because of the fraud he got not
merely a fresh starting point for computing the 12
years period prescribed· in section 48 (2) of the Civil
Procedure Code but is also entitled to an extension of
the time under the Limitation Act, must therefore
fail.
The second contention urged on behalf.of the appellant that because in the third column of article 182
868
SUPREME COURT REPORT
5[1950)
1950
fraud is not mentioned, the case is covered by article
--
J 81 does not also appear to be sound. The third column
y..,~··~ D~~·· in article 182 prescribes the starting point of limita-
" "'"
tion under different specified circumstances. It does
v.
Walchand
not, and indeed need not. mention the ground of fraud
Ramchand
because if fraud of the kind against which the LimitaKothari.
tion Act contemplates relief, as prescribed in section 18
Ch
d-,.,
of the Limitation Act, is established, the time is
an rase~1tara
.
.
.
Aiyar J.
automatically altered by operation of that sect10n. 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. In our opinion, therefore, the contention that
because of the fraud established in the present case
under section 48(2) of the Civil Procedure Code, the
appellant gets a fresh starting point of limitation under
article 182 of the Limitation Act is unacceptable.
The appellant relied on the general principle of jurisprudence that fraud stops or suspends the running of
time and that it should be applied in his favour, apart
from section 18 of the Limitation Act.
Rules of
equity have no application where there are definite
statutory provisions specifying the grounds on the
basis of which alone the stoppage or suspension of
running of time can arise. While the courts necessarily
are astute in checkmating or fighting fraud, it should
be equally borne in mind that statutes of limitation
are statutes of repose.
For the reasons given above we concur in the conclusion reached by the High Court and dismiss the
appeal with costs.
Appeal dismissed.
Agent for the appellant : K. ]. Kale.
Agent for the respondent: Gan pat Rai.