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Supreme Court
Kania C.J. and Das and Aiyar, JJ.
Yashwant Deorao Deshmukh - Appellant
Versus
Walchand Ramchand Kothari - Respondents
Civil Appeal No. 37 of 1950
Decided On : December 18, 1950
Where the final decree provided that the decree-holder should pay the deficit court-fee before the execution of the decree, the decree cannot be said to be a conditional one in the sense that some extraneous event was to happen on the fulfilment of which alone it could be executed. The decree was capable of execution from the very date it was passed and limitation began to run from the date of the decree and not from the date when the court fee was paid. ((Para 5)
The period occupied by insolvency proceedings initiated by the decree-holder against the judgment-debtor cannot be excluded under S. 14(2). The relief sought in insolvency is different from the relief sought in execution. In the former an adjudication of the debtor as insolvent is sought as preliminary to the vesting of all his estate in the Official Receiver or the Official Assignee for the benefit of all the creditors but in the latter, the money due is sought to be realised for the benefit of the decree holder alone. It may be that ultimately in the insolvency proceedings the decree-holder 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. (Para 5)
Whether the facts proved and established are sufficient to make out a case of fraud within meaning of s. 18 is a question of law and such a question can be raised at any stage of the case and also in the final court of Appeal.
The fact that the decree-holder in the lower courts relied on s. 48 C.P.C. only does not prevent him from relying on s. 18 Limitation Act, if the facts necessary to be established for bringing in the assistance of s. 18 are admitted or proved. (Paras 16 and 17)
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. S. 18 postulates the former alternative. To read it as referring to an application for exe:ution to proceed against a particular property would be destructive of the oneness of the decree and would lead to multiplicity of periods of limitation. If a man is prevented from making an application because of the fraud of the debtor he is not necessarily prevented from knowing his right to make the application. 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 judgment debtor. Having the knowledge that he has 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 s. 18. (Paras 22 and 23)
Merely because fraud is established under s. 48 (2) C.P.C. it does not mean that the decree-holder gets a fresh starting point of limitation under Art. 182 Limitation Act. For defeating the plea of the bar of limitation under the Limitation Act, in the case of fraud of the judgment-debtor, provision is found in s. 18 Limitation Act. If the particular case of fraud is not covered by those words there is no protection against the same in the Limitation Act. (Para 24)
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. So where fraud does not fall under s. 18 the running of time cannot be suspended on the general principle of jurisprudence that fraud stops or suspends time. (Para 25)
2. The execution application was filed on 4th October, 1946, and the amount stated to be due under the decree on that date was Rs. 2,30,986 and odd. The previous Exn. Appln. No. 946 of 1940 filed in the Court of the 1st Class Sub-Judge Sholapur, to which the decree had been transferred for execution, was made on 24th June, 1940. It was dismissed on 9th Septem-ber, 1940 for non-prosecution.
3. 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 three 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 that the plaintiff should pay the deficit court-fees on the decretal amount before the execution of 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 s. 14 (2), 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-holders favour from the date of the discovery of the fraud.
4. 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 different relief altogether, so that s. 14 (2), Limitation Act, could not be invoked. They concurred with the finding of the Subordinate Judge that the judgment-debtor prevented the execution of the decree within twelve years by fraudulent concealment of his ownership of the Prabhat newspaper and that the twelve years bar of limitation did not apply; but they held that the application was barred under Art. 182, Limitation Act, as more than three years had run from 9th September, 1940, the date of the dismissal of the previous execution application, before the present application was filed on 4th October, 1946.
5. 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
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