Case: Yeswant Deorao Deshmukh Vs. Walchand Ramchand Kothari

1. This appeal, preferred from the decree of the Bombay High Court in Appeal No. 281 of 1947, raises the question whether an execution application seeking to execute a final decree, passed by the 1st Class Subordinate Judges Court, at Poona, on 6-12-1932, for and 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.2. The execution application was filed on 4-10-1946, 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 24-6-1940. It was dismissed on 9-9-1940 for non-prosecution.

Court's reasoning:
This line of reasoning is hardly convincing, when we have to consider whether what is attributed to the judgment-debtor does not amount to 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.In our opinion, the facts necessary to establish fraud under S. 18, 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. Section18, 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 Arts. 181 and 189, Limitation Act and S. 48, Civil P. C., should be read together. The Articles expressly refer to the Section. But they are independent or parallel provisions, different in their scope and object. As held in Kolyanasundaram Pillai v. Vaithilinga Vannias, I. L. R. (1939) Mad. 611   : (A.I.R. (26) 1939 Mad. 270) S. 48 (2) extends the 12 years period of closure by a further period of similar duration but the necessity of resort to Art. 182 is not thereby obviated. The decree-holder must have been taking steps to keep the decree alive and the only circumstance that could relieve him of this obligation is the existence of fraud under S.18, 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 cross-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-debtors monies but standing in his wifes or daughters 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 appellants 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 knowledge of the ownership.It is thus clear that the appellant cannot get the benefit of S. 18, Limitation Act. It was next urged on behalf of the appellant that under S. 48 (2), Civil P. C., because of the fraud of the respondent the appellant got a fresh starting point of limitation for the Limitation Act also and therefore the starting point contemplated in Col.3 of the schedule to the Limitation Act relating to applications for execution should be the date when the fraud was discovered by the appellant. In other words, it was argued that the effect of S. 48 was not merely to make the 12 years period start from the discovery of fraud for the purpose of S. 48 (2), Civil P. C., but also to give a fresh starting point for the schedule to the Limitation Act. This argument cannot be accepted. 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. By the enactment of S. 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 judgment-debtor. 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 S. 18, Limitation Act. Therefore the argument advanced on behalf of the appellant isargument, in our opinion, instead of helping the appellant, goes against him. Such a provision in Col. 3 in the Article relating to execution of decrees is not necessary because provision for such a contingency is made in S. 18. Affirmatively by the inclusion of S. 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 Col. 3 in the Articles, the Legislature has clearly indicated that unless advantage could be taken by the decree-holder under S. 18 on the ground of the fraud of the judgment-debtor, fraud does not give any other relief under the Limitation Act. This scheme of the Legislature is not inconsistent with S. 48, Civil P. C. The two provisions in the two Acts have to be read as related to the same subject but dealing with two different aspects. Without S. 48, Civil P. C., a decree-holder, if he made applications as required by Art. 181 or 182, Limitation Act, could keep his decree alive 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 Art. 182 or 181, as the case may be. In the case of the fraud of the judgment-debtor provision is made in S. 48 (2) for enlarging the 12 years period prescribed under S. 48. 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 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 with 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 S. 48 (2), Civil P. C., but is also entitled to an extension of the time under the Limitation Act must, therefore, fail.does not, and indeed deed not, mention the ground of fraud because fraud of the kind against which the Limitation Act contemplates relief, as prescribed in 18, Limitation Act, is established, the time 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 Col.3 irrespective of the question of fraud. In our opinion, therefore, the contention that because if the fraud established in the present case under S. 48 (2), Civil P. C., the appellant gets a fresh starting point of limitation under Art. 182, limitation Act isof 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.