http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11

PETITIONER:

YESWANT DEORAO DESHMUKH

Vs.

RESPONDENT:

WALCHAND RAMCHAND KOTHARI.

DATE OF JUDGMENT:

01/12/1950

BENCH:

AIYAR, N. CHANDRASEKHARA

BENCH:

AIYAR, N. CHANDRASEKHARA

KANIA, HIRALAL J. (CJ)

DAS, SUDHI RANJAN

CITATION:

1951 AIR 16 1950 SCR 852

CITATOR INFO :

R 1965 SC1325 (6,58)

R 1979 SC1165 (15)

ACT:

Limitation Act (II of 1908), ss. 14 (2 ), 18, Art.

182--Civil Procedure Code (V of 1908), s. 48--Execution of

decree--Application after 12 years from decree and 3 years

from order on last application--Fraudulent concealment of

property to prevent execution-Maintainability of applica-

tion--Limitation--Fraud preventing execution against partic-

ular property--Whether saves limitation under Art.

182--Applicability of s. 18--Decree directing payment of

deficit court fee before execution--Whether conditional

decree--Starting point of limitation--Time spent in proceed-

ings to adjudge judgmentdebtor insolvent, whether should be

excluded.

HEADNOTE:

An application for execution of a decree was made after

the expiry of 12'years from the date of the decree and 3

years from the date of the final order on the last previous

application for execution. The decree-holder contended that

the judgment-debtor had "fraudulently purchased a business

in the name of a stranger and had 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 he was entitled to make an application even

after the expiry of 19, 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 the 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 as fraud for the purpose of s.

48 of Civil Procedure Code was proved, s. 18 of the Limita-

tion Act was applicable to the case and his application was

not barred under Art. 189. 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:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11

Held, (i) that the question whether on the proved facts s.

18 was applicable to the case was a pure question of law and

the decree-holder was entitled to raise 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 189. of the Limitation Act dealt with the

time limit for making applications for execution of decrees

and should be read together, they were different in their

scope and object, and the fact that the application was not

barred under s. 48, Civil Procedure Code, did not obviate

the necessity of considering whether it was barred

853

under Art. 182; (iii) that, as the fraud committed by the

judgment-debtor did not in any way conceal from the decree-

holder the knowledge of his right to make an application for

execution of , the decree but only prevented him from exer-

cising that right in respect of a particular property, s. 18

had no application to the case, and the application was

therefore barred under Art. 182 of the Limitation Act; (iv)

the fact that there was no provision in Art. 182 for cases

where the judgment-debtor had committed a fraud as in the

present case did not render that article inapplicable 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 eases where there is fraud.

Held also, (i) A decree which provides that the plain-

tiff should pay the deficient court fees before executing

the decree is not a conditional decree and time for making

an application for execution 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 6.14 (2) of

Limitation Act, in computing the period of limitation for

making an application for executing the decree.

Judgment of the Bombay High Court affirmed.

JUDGMENT:

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.

K. S. Krishnaswami Aiyangar (K. Narasimha Aiyangar,

with him) for the appellant.

M.C. Setalvad, Attorney-General for India, (B. Sen, with

him) for the respondent.

1950. December 1. The Judgment of the court was deliv-

ered by

CHANDRASEKHARA AIYAR J. --This appeal, preferred ch 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 let Class

Subordinate Judge's Court at Poona, on 6th December, 1932,

for a sum of Rs. 1,24,215 and odd, is barred by limitation.

The decree was made in a suit for dissolution of a partner-

ship and the taking of accounts.

854

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 execution

application 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11

was dismissed on 9th September, 1940, for non-prosecution.

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 3 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 Decem-

ber, 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 section 14 (2) of the Limitation Act; third-

ly, 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-holder's favour from the date of the discovery

of the fraud.

The Subordinate Judge held that the execution applica-

tion was not barred, agreeing with every one of these con-

tentions. On appeal to the High Court Chagla C.J. and Dixit

J. reversed this decision, holding that it was not a condi-

tional decree, that the steps taken by Tendulkar to execute

this decree were of no avail, and that the insolvency pro-

ceedings were for a

855

different relief altogether, so that section 14 (2) of the

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

12 years by fraudulent concealment of his ownership of the

'Prabhat' newspaper and that the twelve years' bar of limi-

tation did not apply; but they held that the application was

barred under article 182 of the 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.

Points 1 to 3 above mentioned are of no avail to the appel-

lant. 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 execu-

tion 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 differ-

ent 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 of it by the Official Receiver or the

Official Assignee, as the case may be, for the benefit of

all the creditors; but in the latter, the money due is

sought to be realized for the benefit of the decree-holder

alone, by processes like attachment of property and arrest

of person. It may be that ultimately in the insolvency

proceedings the decreeholder may be able to realize his debt

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11

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.

The steps taken by the appellant's creditor Tendulkar to

attach this decree and put it in execution do not save

limitation. His darkhast for attachment of the

856

present decree was on 3rd April, 1940, and for execution of

the present decree was on 1st February, 1944, more than 3

years from 9th September, 1940, which is the date of the

dismissal of the appellant's prior execution petition.

The learned Advocate for the appellant therefore devot-

ed most of his argument to the fourth contention set forth

above. That the judgment-debtor respondent suppressed his

ownership of the 'Prabhat' newspaper and fraudulently pre-

vented the execution of the decree against this property has

been found by both the Courts below, as stated already. It

was strenuously urged that the fraud so found is not merely

fraud as broadly interpreted under section 48 (2), Civil

Procedure Code, but also strict or concealed fraud within

the meaning of section 18 of the Limitation Act. In this

connection, it is as well to set out very briefly the nature

of the concealment and the steps taken by the judgment-

debtor to achieve the same. He purchased the 'Prabhat'

newspaper with all its assets and goodwill from its previ-

ous owner one Purushottam Mahadev in 1938 under the

letter marked Exhibit 129. He opened current accounts in

several banks, and gave the name of one Abhyankar as the

owner of the paper, but he was himself operating on those

accounts. One Rajwade, a friend of the judgment-debtor, was

shown as the printer and publisher of the paper. Even in

his supplementary written statement flied in Court in

answer to the present execution, marked Exhibit 88 (page 53

of the printed book), the defendant asserted in paragraph 2

that he became the owner of the newspaper only in

April,/944, and that previously he had no ownership or right

in the same. He did not go into the witness box to refute

the allegation that he was the owner ever since the purchase

of the paper in 1938 and that he opened accounts in the

names of other people on which he was operating for his own

benefit. On these facts, the Subordinate Judge found as

follows :-"I think on the whole that the evidence establish-

es beyond doubt that the judgment-debtor had concealed his

proprietary interest in his newspaper called

857

Prabhat' from June, 1938, to April, 1944. The only purpose

for which the property could have been concealed in this way

was probably the fear that the decree-holder would pounce

upon it if he came to know about it. The decree-holder came

to know of this fraud after April, 1944; for thereafter the

judgment-debtor made an open declaration that the newspaper

belonged to him. I think therefore that this fraud has

prevented the decree-holder from executing the decree

against some property of the judgment-debtor." In this

finding, the High Court concurred. After referring to the

stratagem adopted by the judgment-debtor in Bhagu Jetha v.

Malick Bawasaheb(1), the learned Judges observed:--

"In this case, in our opinion, the stratagem is much more

dishonest. The attempt on the part of the judgment-debtor

was to conceal his property, to deny its ownership and to

put forward a mere benamidar as the real owner of that

property. In our opinion, therefore, the execution of the

decree is not barred under section 48. The 'judgment-

debtor has, by fraud, prevented the execution of the

decree within 12 years before the date of the application

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11

for execution by the decree-holder and therefore the decree

under consideration is capable of being executed."

On the strength of this concurrent finding, Mr. Krish-

naswami Iyengar for the appellant argued that the fraud fell

within the scope of section 18 of the Limitation Act and

that if it were so, he was out of the woods, inasmuch as the

proper article to apply would be article 181 of the/imita-

tion Act. The right to apply accrued to him when the fraud

became known to him in or about June, 1946. 'Till then he

was kept by the fraud from the knowledge of his right to

make an application against the property. Law does not

require him to make futile successive applications in execu-

tion, in the face of this fraud. He was not in a position

to seek even the arrest of the judgment debtor as he had got

himself declared in the insolvency proceedings as agriclu-

turist." within the meaning of the Deccan

(1) I.L.R. 9 Bom. 318

110

858

Agriculturists' Relief Act. alleging falsely that he was not

in receipt of any income by way of salary or remuneration

from the newspaper concerned and that he was mainly depend-

ent on the income of his family lands for his maintenance.

There can be no question that the conduct of the re-

spondent was fraudulent within the meaning of section 48

(2) of the Civil Procedure Code. Though benami transactions

are common in this country and there is nothing per se wrong

in a judgment-debtor purchasing property in another man's

name, we have to take into account all the circumstances

attending the purchase and his subsequent conduct for find-

ing out whether it was part of a fraudulent scheme on his

part to prevent the judgment-creditor from realizing the

fruits of his decree. Fraudulent motive or design is not

capable of direct proof in most cases; it can only be in-

ferred. The facts before us here leave no room for doubt

that the true object of the judgmentdebtor was to prevent

the execution of the decree against the ' Prabhat ' news-

paper Which he had purchased. Other persons were shown as

the printer and the publisher of the newspaper, while Abhy-

ankar was mentioned as the proprietor, The judgement-

debtor, was, however, operating on those accounts for his

own benefit. In the Insolvency Court, he set up the plea

that he was an agriculturist, by suppressing the truth about

his ownership of the paper, and pretending that his income

was mainly, if not solely, from the family lands. He kept

up this show till April 1944, when probably he felt that he

was sale from the reach of the judgment-creditor. Even in

his answer to the execution application, out of which this

appeal has arisen, he had the hardihood to assert that he

was not the owner of the paper till April 1944. It should

also be remembered that he did not get into the witness box

to explain what other necessity there was for all this

camouflage, except it be to cheat the appellant of his dues

under the decree.

Mr. Setalvad, the learned Attorney-General, who appeared for

the respondent, pointed out that there

859

was no benami purchase and that the holding out of Abhyankar

as the proprietor of the ' Prabhat' did not amount to any

false representation or misrepresentation to the judgment-

creditor, as the accounts on which reliance was placed were

accounts opened in the banks and were not ordinarily avail-

able for inspection by third parties. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11

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.

It would be convenient to set out here in extenso sec-

tion 48, Civil Procedure Code, and section 18 of the Limita-

tion Act before we proceed to consider the soundness of the

arguments advanced by both sides in support of the positions

they have taken up.

Section 48, Civil Procedure Code (which corresponds to

section 230 of the Code of 1882), is in these terms:

" 48. (1) Where an application to execute a decree not

being a decree granting an injunction has been made, no

order for the execution of the same decree shall be made

upon any fresh application presented after the expiration of

12 years from

(a) the date of the decree sought to be executed, or

(b) where the decree or any subsequent order directs, any

payment of money or the delivery of any property to be made

at a certain date or at recurring periods the date of the

default in making the payment of delivery in respect of

which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed--

(a) to preclude the Court from ordering the executior of a

decree upon an application presented after the expiration of

the said term of twelve years, where the

860

judgment-debtor has by fraud or force prevented the execu-

tion of the decree at some time within twelve years immedi-

ately before the date of the application; or

(b) to limit or otherwise affect the operation of arti-

cle 183 of the first Schedule to the Indian Limitation Act,

1908."

Section 18 of the Limitation Act, 1908, runs thus:-

" 18. Where any person having a right to institute a suit

or make an application has, by means of fraud, been kept

from the knowledge of such right or of the title on which it

is founded,

or where any document necessary to establish such right

has been fraudulently concealed from him,

the time limited for instituting a suit or making an

application

(a) against the person guilty of the fraud or accessory

thereto, or

(b) against any person claiming through him other-

wise than in good faith and for a valuable consideration,

shall be computed from the time when the fraud first

became known to the person injuriously affected thereby, or,

in the case of the concealed document, when he first had the

means of producing it or compelling its production."

Whether the fraud of the judgment-debtor should actually

prevent the execution of the decree or whether it is enough

if the fraud has been committed without esulting in actual

prevention is a question on which there has been some diver-

gence of opinion in the decided cases. The former view was

taken in an early Madras case Kannu Pillay v. Chellathammal

and ) Others(1) and receives support from the decision

reported in Sri Raja Venkata Lingama Nayanim Bahadur Varu

and Another v. Raja Inuganti Rajaopala Venkata Narasimha

Rayanim Bahadur Varu and five Others(2)to which our learned

brother Mr. Justice Patanjali Sastri was a party. The latter

view

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11

(

(1) [1898] M.I.J. 203. (2) I L R. 1947 Mad. 525.

861

is indicated in M.R.M.A.S.P. Ramathan Chefliar v. Mahalingam

Chetti(1) by a Bench of which Sir Madhavan Nair J. was a

member. It is not necessary to determine which view is

correct, as we have here definite findings of both the

Courts below that there was fraud preventing the execution

of the decree within the meaning of Section 48 of the Civil

Procedure Code.

The appellant thus escapes the bar of the 12 years'

period and he has a fresh starting point of limitation from

the date of the fraud for section 48 of the Civil Procedure

Code. In other words, the decree-holder has another 12 years

within which he can execute his decree.

Having thus got over the difficulty in his way under

section 48 of the Code of Civil Procedure, he has next to

meet the objection under the Limitation Act. On behalf of

the appellant, it was urged that section 18 of the Limita-

tion Act applied to the facts and that the right to

apply accrued to the appellant when the fraud by the

judgment-debtor became known to him in 1946. No reliance

was placed on section 18 of the Limitation Act in the courts

below and no reference to it is found in the grounds of

appeal to this court. It is however mentioned for the first

time in the appellant's statement of the case. If the

facts proved and found as established are sufficient to make

out a case of fraud within the meaning of section 18, this

objection may not be serious, as the question of the

applicability of the section will be only a question of law

and such a question could be raised at any stage of the case

and also in the final court of appeal. The following obser-

vations of Lord Watson in Connecticut Fire Insurance

Co. v. Kavanagh (2) are relevant. He said: "When a ques-

tion of law is raised for the first time in a court of last

resort upon the construction of a document or upon facts

either admitted or proved beyond controversy, it is not only

competent but expedient in the interests of justice to

entertain the plea. The expediency of

(1) 1.L.R. 58 Mad. 311. (2) [1892] A.C. 473.

862

adopting that course may be doubted when the plea

cannot be disposed of without deciding nice questions of

fact in considering which the court of ultimate review is

placed in a much less advantageous position than the courts

below."

Mr. Setalvad, however, urged that the appellant

should not be allowed to rely on section 18 now for the

first time and that even if fraud within the meaning of that

section had been pleaded the respondent might have adduced

counter-evidence by himself going into the witness box or

otherwise. According to him, the approach to the question

of fraud under section 18 of the Limitation Act is quite

different from the approach under section 48 of the Civil

Procedure Code. There may be cases where the fraud alleged

and found is fraud in the wider sense of the term within the

meaning of section 48 (2) of the Civil Procedure Code, but

the same facts do not amount to fraud as strictly construed

under section 18 of the Limitation Act. The fact that the

decree-holder in the lower courts relied on section 48,

Civil Procedure Code, only does not prevent him from relying

on section 18 of the Limitation Act if the facts necessary

to be established for bringing in the assistance of section

18 of the Limitation Act are admitted, or proved. It is not

disputed that the fraud contemplated by section 18 of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11

Limitation Act is of a different type from the fraud contem-

plated by section 48 (2) of the Civil Procedure Code. The

wording of section 18 which requires the fraud "to prevent

knowledge of the right to make the application" is neces-

sarily of a different nature from the fraud which prevents

the decree-holder from making an application for execution.

Conceding to the appellant the right to rely on section

18 of the Limitation Act even at this late stage, let us see

if it is really of any help to him on the facts found. The

section has been quoted already. It speaks of the right to

institute a suit or make an application which by means of

fraud has been kept from the knowledge of the person having

the right or the title on which it is founded. The right to

apply for

863

execution of a decree like the one before us is a single and

indivisible right, and not a composite right consisting

of different smaller rights and based on the decree-holder's

remedies to proceed against the person of the judgment-

debtor or his properties, moveable and immoveable. Togive

such a meaning would be to split up the single right into

parcels and to enable the decree-holder to contend that

while his right to proceed against a particular item of

property is barred, it is not barred in respect of other

items. We would then be face to face with different periods

of limitation as regards one and the same decree. An inter-

pretation which leads to this result is prima facie un-

sound. Both sides agreed 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 contentions, lead to the

same conclusion about the indivisibility 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 multiplicity

of periods of limitation. It is true that articles 181 and

182 of the Limitation Act and section 48,

864

Civil Procedure Code, 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 Kalyanasundaram Pillai v. Vaithilinga Vanniar

(1) section 48 (2) extends the 12 years' period of closure

by a further period of similar duration but the necessity of

resort to article 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 section 18 of the

Limitation Act. The learned Advocate of the appellant asked

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11

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 owner-

ship of the 'Prabhat' newspaper, did not conceal from him

his right to make an application for execution of the de-

cree. Indeed, the suppression, which began in 1938, did

not prevent the decree-holder from applying for execution in

19-10; and in his answers in cross-examination, he has

adimitted that there were other properties to his knowledge

against which he could have sought execution, viz., deposits

in several banks of the judgment-debtor's monies but stand-

ing in his wife's or daughter's names, life insurance poli-

cies 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 appellant's

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

(1) I,L.R. 1939 Mad.611

865

knowledge of the ownership. To quote two sentences from his

deposition: "I had suspected that defendant No. 1 was the

real owner of the business all the while. But I had no posi-

tive knowledge or information till 1946" ....... "I could

not take any step for attaching the defendant's business

till 1946 as I had no evidence to prove the defendant's

fraud till then." There is no obligation on the judgment-

debtor to post the decree-holder with all details of his

properties; it is the decree-holder's business to gather

knowledge about the properties so that he can realise the

fruits of his decree.

In dealing with this evidence, Mr. Krishnaswami lyengar

relied on the Privy Council decision, Rahimbhoy v. Turner in

20 I.A. 1 and referred to the following observation of Lord

Hobhouse at page

"But their Lordships consider, and in this they agree

with both the Courts below, that all that the appellant

Rahimbhoy has done is to show that some clues and hints

reached the assignee in the year 1881, which perhaps, if

vigorously and acutely followed up, might have led to a

complete knowledge of the fraud, but that there was no

disclosure made which informed the mind of the assignee that

the insolvent's estate had been defrauded by Rahimbhoy of

these assets in the year 1867."

The passage cited does not apply here because the appellant

admits knowledge, which is more than a mere suspicion, but

states that he had no evidence to prove the defendant's

ownership. In any event, it has not been established within

the meaning of section 18 of the Limitation Act that the

fraud alleged and proved kept back from him the knowledge of

his right to execute the decree.

It is thus clear that the appellant cannot get the

benefit of section 18 of the Limitation Act. It was next

argued on behalf of the appellant that under section 48(2)

of the Civil Procedure Code, because of the fraud of the

respondent the appellant got a fresh starting point of

limitation for the Limitation Act also

111

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11

866

and therefore the starting point contemplated in the third

column 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 section 48 was not merely to make

the 12 years' period start from the discovery of fraud for

the purpose of section 48(2) of the Civil Procedure Code 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 section 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 judg-

mentdebtor. 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 section 18 of

the Limitation Act. Therefore the argument advanced on

behalf of the appellant is unsound.

It was urged that the various starting points mentioned in

the third column to article 182 of the Limitation Act cannot

apply because none of them specify a fresh starting point

for execution acquired on the ground of the fraud of the

judgment-debtor. This argument, in our opinion, instead of

helping the appellant, goes against him. Such a provision

in the third column in the article relating to execution of

decrees is not necessary because provision for such a con-

tingency is made in section 18. Affirmatively, by the inclu-

sion of section 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 the third column

in the articles, the Legislature has clearly indicated that

unless advantage could be taken by the

867

decree-holder under section 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 section 48 of the Civil Procedure

Code. The two provisions in the two Acts have to be read as

related to the same subject but dealing with two differents

aspects. Without section 48 of the Civil Procedure Code a

decree-holder, if he made applications as required by arti-

cle 181 or 182 of the 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 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 limitation 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 particu-

lar case of fraud set up and proved is not covered by those

words, there is no protection against the same in the Limi-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11

tation Act. Read in that way, the two legislative provi-

sions are neither conflicting nor overlapping; and they

are capable of operating harmoniously, as they deal with

different situations and circumstances. The argument ad-

vanced 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 appellant

that because in the third column of article 182

868

fraud is not mentioned, the case is covered by article

181 does not also appear to be sound. The third column in

article 182 prescribes the starting point of limitation

under different specified circumstances. It does not, and

indeed need not, mention the ground of fraud because if

fraud of the kind against which the Limitation Act contem-

plates relief, as prescribed in section 18 of the Limitation

Act, is established, the time is 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 the third column, irrespective of the

question of fraud. In our opinion, therefore, the conten-

tion 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 conclusion

reached by the High Court and dismiss the appeal with costs.

Appeal dismissed.

Agent for the appellant: K.J. Kale.

Agent for the respondent: Ganpat Rai.

869