LexYESWANT DEORAO DESHMUKH versus WALCHAND RAMCHAND KOTHARI
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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 applica- tion-Fraudulent concealment of property to prevent execution- Maintainability of application-Limitation-Fraud preventing exe- cution 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 judgment- debtw 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 execu- tion. 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 applica- tion 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 inapplica- ble 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 ..
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