01 December 1950
Supreme Court


Case number: Appeal (civil) 37 of 1950






DATE OF JUDGMENT: 01/12/1950


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:



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



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



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



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



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



( (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



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



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



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-



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