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IN THE HIGH COURT OF MADRAS
V Rao
Adaikappa Chettiar
Versus
Natesan Chettiar
Decided On : 26 November, 1929
The fraud of one judgment-debtor does not extend the time for execution against other judgment-debtors. The principle of constructive res judicata applies to execution proceedings. The order on a prior execution application impliedly decided that the decree was then executable, and the judgment-debtor cannot be allowed to urge that that order was wrong in any subsequent proceeding. To that extent, the bar of res judicata will operate against him; but that does not mean that he is precluded from contending that the present execution application is affected by the 12 years rule. For the reasons already mentioned, the order then passed cannot be interpreted as involving any decision as regards the starting point of limitation.
Fact of the Case:
A decree was passed in 1913 on a promissory note executed by defendant 1 in 1910. The suit itself was filed in 1912. There was a partition in 1911 between Lakshmanan Chetty and Ramaswami Chetty. It contains no reference to the debt in question, but there is a general clause that each party is to be liable for his own debts. The respondent argued that defendant 1 must be deemed to have been the agent of defendant 3 for paying, it off. It is next asserted that the debt became merged in the decree of 1913, and that when defendant 1 falsely pleaded that it had been discharged, it must be deemed that he was acting not only on his own behalf but also on behalf of his principal defendant 3.
Finding of the Court:
The fraud of defendant 1 in this case cannot be availed of by the assignee decree-holder to claim exemption as against the other defendants from the bar of limitation enacted by Clause 1 of the section. The learned District Judge answered the question in the affirmative as the fraud practised by defendant 1 and the obstruction to execution caused by him enured to the benefit of the other defendants, and inasmuch as by such fraud the decree-holder was not able to execute the decree. It is argued on behalf of the appellant that the judgment-creditor in this case, the assignee decree-holder, could claim the benefit of Clause 2 of the section only as against the judgment-debtor who had by force or fraud prevented the execution of the decree, i. e. defendant 1, and not as against the other defendants.
Issues: Whether the fraud of one judgment-debtor extends the time for execution against other judgment-debtors. Whether the principle of constructive res judicata applies to execution proceedings. Whether the order on a prior execution application impliedly decided that the decree was then executable, and the judgment-debtor cannot be allowed to urge that that order was wrong in any subsequent proceeding.
Ratio Decidendi: The construction of the section accepted by the Judges would be inequitable to the decree-holder is met with this observation: It seems to me that there is not only no equity in favour of the judgment-creditor but that it would be inequitable that a judgment-debtor should be deprived of the benefit of the prescribed limitation by reason of acts done by his judgment-debtor, over whom he has presumably no control and for whose action he is not responsible.
Final Decision: Appeal allowed.
Venkatasubba Rao, J.
1. The lower Court made an order transmitting the decree for execution as against defendants 4 and 5. This appeal has been filed by defendant 5 who impeaches that order. The following pedigree may be found useful: --------------------
| |
Lakshman Chetty Ramaswamy Chetti
defendant 1 (died) prior to the filing
| of O.S. No. 10 of 1912
Kasi Chetti defendant 2 |
(died) |
|
--------------
|
--------------------
| |
Kasi Chetti Adaikappa Chetti
defendant 3 defendant 4
died 29th March 1922
|
Adaikappan Chetti
defendant 5
2. A certain Sreenivasa Naicker filed O.S. No. 10 of 1912 in the Sub-Court of Tuticorin for the recovery of about Rs. 23,000 due upon a promissory note executed by Lakshmana, defendant 1, in his favour. In that suit four persons were joined as defendants, Lakshmana and his son (representing one branch) and the two sons of Ramaswami (representing the other branch). I may note at once that defendant 5 was not made a party to that suit. A decree was passed on 10th February 1913, against defendant 1 personally and against the family properties, of all the defendants that had been impleaded. The plaintiff, Sreenivasa, assigned the decree on 27th July 1914, in favour of the respondent Natesa Chetti. His right as assignee-decree-holder was recognized by the High Court on 23rd January 1917. On 28th November 1924, defendants 1 and 4 were respectively brought on the record as the legal representatives of the second and third, who had in the meantime died. Several execution applications were from time to time filed, so that the decree might not get barred under the three years rule. The respondent filed the execution application (E.A. No. 1028 of 1928) which is the subject of this appeal in the usual form, on 1st October 1928. In addition to that application, he filed on the same date a separate petition for bringing defendant 5 on the record, in the place of his deceased father, defendant 3. The two applications were resisted by both defendants 4 and 5, but their objections were overruled by the learned Subordinate Judge, who directed the decree to be transmitted for execution as against them.
3. From this statement, it is clear that when the execution application in question was filed, more than 12 years had elapsed from the date of the decree. Section 48, Civil P.C., would ordinarily be a bar to the execution, but the respondent relies upon certain fraud, under Clause 2 (a) of that section, which he contends prevents the running of the Statute of Limitation. That clause runs thus 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 12 years, where the judgment-debtor has by fraud or force, prevented the execution of the decree at some time within 12 years immediately before the date of the application.
4. He admits that the fraud alleged by him is that of defendant 1, but says that it enables him to treat the decree as being alive even as against defendant 4. The first question that this appeal raises is, whether this contention is correct. He next urges that defendant 4 is prevented on the ground of res judicata from pleading that the decree is barred by the 12 year rule. The facts that need be referred to in this connexion are the following. The respondent filed on 1st November 1927, E.A. No. 1509 of 1927. Defendant 4 did not appear to contest it and an order was made on 18th April 1928, transmitting the decree for execution. It will be seen that this application of November 1927, was itself filed after the lapse of 12 years from the date of the decree. What the respondent urges is, that the order then made, involves the decision that the decree was nevertheless in force and that defendant 4 is precluded from now raising the plea that it is barred by the twelve year rule. I may observe that the question of res judicata is a new point raised by the respondent for the first time in appeal. He ne
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