YESWANT DEORAO DESHMUKH v. WALCHAND RAMCHAND KOTHARI
Citation: [1950] 1 S.C.R. 852; 1950 INSC 34
Court: Supreme Court of India
Bench: HARILAL JEKISUNDAS KANIA , SUDHI RANJAN DAS, N. CHANDRASEKHARA AIYAR
Judgment date:
Case summary
1950 INSC 34. Supreme Court of India judgment dated 1950-12-01. YESWANT DEORAO DESHMUKH v. WALCHAND RAMCHAND KOTHARI. Read the judgment and case details on...
Judgment 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 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 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 conten- tions, lead to the same conclusion about the in- divisibility 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 multipli- city of periods of limitation.
It is true that arti- cles 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 arti- ch d -, 1 • cle 182 is not thereby obviated. The decree-holder an rase <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 1 8 1 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 independ- ent 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 cover- ed 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 appel- lant 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 Limita- Kothari. 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 juris- prudence 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 con- clusion 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.
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