PHOOLCHAND Vs. RAMCHANDRA
HIGH COURT OF MADHYA PRADESH
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Khan, J. -
(1.) THIS second appeal arises out of execution proceedings and the question for determination is whether an application given by the decree -holder in a pending execution for the arrest of the judgment -debtor after 12 years is a fresh application within the meaning of Section 48, Code of Civil Procedure or not?
(2.) THE facts out of which this appeal arises are that the decree was passed on 3 -8 -1938. The decree -holder filed his first execution on 11 -3 -1941 but it was dismissed on 14 -7 -1941. Thereafter the present execution, No. 243 of 1949 was filed and in the course of the execution proceedings the decreeholder obtained some money by the sale of a house on 27 -3 -1951.
In the pending execution the decree -holder applied on 30 -3 -1951 to the Court for the arrest of the judgment -debtor. The judgment -debtor raised an objection that the application dated 30 -3 -1951 for his arrest was a fresh application within the meaning of Section 43, Code of Civil Procedure and that it was barred by the statute.
The first executing Court upheld the contention of the judgment -debtor but on appeal although, the appellate Court held that the application in question was a fresh application within the meaning, of Section 48, Code of Civil Procedure yet, on the ground of fraud of the judgment -debtor (Section 48(2)(a), Code of Civil Procedure) it allowed the execution to proceed. Now this is judgment -debtor's second appeal.
The relevant portion of Section 48, Code of Civil Procedure which bars the execution after 12 years' runs as follows:
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 present -rafter the expiration of twelve years.
(3.) THE whole case turns upon the interpretation of the phrase "fresh application" occurring in the above passage. It seems that in the Code 1882, the expression used in the corresponding Section 230 was 'subsequent application.' This gave rise to some judicial conflict and therefore in the later Code, namely the present Code of Civil Procedure, the phrase 'Fresh application' was substituted for subsequent. application'.
The learned Counsel for the Appellant contends that any application given after 12 years is hit by Section 48, Code of Civil Procedure and because the application dated 30 -3 -1951 for arrest was presented after 12 years from the date of the decree, it is a fresh application within the meaning of Section 48, Code of Civil Procedure and hence inexecutable.
In support of his contention he has referred, me to Venkatalingama v. Venkata Narasimha' : AIR 1947 Mad 216 (A), 'Lakshminarasinga Rao v. Balasubrahraanyam', AIR 1949 Mad 251(B) and 'Mohammad Jamil Ahmad v. Suraj Narain Pd.', AIR 1951 Pat. 635(c)' in which this view is expressed that an application by which it is sought to proceed against properties other than those mentioned in the first execution petition is a fresh application within the meaning of Section 48 and no such application is entertainable after 12 years from the date of the decree sought to be executed.;
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