SOERTSZ S.P.J.—Dias v. Vaduganathan CheUiar.
1947Present:Soertsz S. P. J. and. Canekeratne J.
DIAS Appellant, and VADUGANATHAN CHETTIAR, Respondent.
S. C. 116—D. C. Colombo, 52,178
Civil Procedure Code, s. 337, proviso—Execution of decree—Subsequent applicationfor writ—Ten years after decree—Promise by debtor to pay—Fraud.
Where, on a promise by the judgment-debtor to pay the amount of thedebt, the creditor refrained from taking out writ till after the lapse of tenyears from the date of the decree—
Held, that the judgment debtor had not been guilty of fraud within themeaning of the proviso to section 337 of the Civil Procedure Code.
The bar imposed by section 337 is an absolute bar.
^PPEAL from a judgment of the District Judge, Colombo.
H. V. Perera, K. C. with E. B. Wikramanayake, for the defendant,appellant.
A. Hayley, K. C. with C. Thictgalingam, for the plaintiff, respondent.
November 14, 1947. Soertsz, S. P. J.—
If it is of any use to the plaintiff respondent to know it, we shouldhave been disposed to help him if we could but, we find ourselves power-less in view of the terms of section 337 of the Civil Procedure Code.
The facts necessary for the determination of the questions herearising are, that on April 12, 1933, there was entered a decree againstthe defendant-appellant requiring him to pay Rs. 18,057-81 with interestand costs. Pater the parties came to an agreement by which the defend-ant undertook to pay Rs. 400 per annum till the whole debt was paid.These payments were made regularly till 1943, and in respect of 1944,when the date with which we are concerned in this case was reached,
SOERTSZ 8.P.J.—Dias v. Vaduganathan Chettiar.
Its. 300 of the Its. 400 due for that year had also been paid. Afterthe lapse of 10 years from the date of decree the judgment-creditor madethis application for the issue of writ.
Section 337 (1) of the Civil Procedure Code provides : “ Where an appli-cation to execute a decree for the payment of money or delivery ofother property has been made under this Chapter and granted, no sub-sequent application to execute the same decree shall be granted, unlessthe Court is satisfied that on the last preceding application due diligencewas used to procure complete satisfation of the decree, or that executionwas stayed by the decree-holder at the request of the judgment debtor ”,That part of section 337 is not appropriate to the facts in this case,because this was a subsequent, namely, the second-application for writmade for execution of the judgment-debt, and no question of “ duediligence ” arose. But, the next part of the section goes on to say,“ No such subsequent application shall be granted after the expirationof 10 years from any of the following dates, namely:—(a) the date ofthe decree sought to be enforced, or of the decree, if any, on appealaffirming the same ”.337 (b) does not arise in this case. Then comes
the Proviso to the sections under which the plaintiff-respondent soughtescape from the peremptory terms or the section. That proviso is to,this effect. “ Nothing in this section shall prevent the Court fromgranting an application for execution of a decree after the expirationof the said term of ten years, where the judgment-debtor has, by fraudor force, prevented the execution of the decree at some time within tenyears immediately before the date of the application. ”
The plaintiff-respondent has been granted relief in this matter by thelearned District Judge on the ground that there had been fraud employedby the judgment-debtor to prevent the execution of the decree within10 years immediately before the date of application. In regard to thisquestion of fraud, purely a question of fact, the learned District Judgebases his order on the evidence given by the Kanakke Pulle of the judge-ment-creditor. For my part, I find it extremely difficult to accept theevidence of the Kanakke PuJle as truthful evidence. Of course, he hassaid various things, but the question is whether they can be acceptedconsistently with the other established facts and circumstances of thecase. ' I think not. But, even taking that evidence at its face valueI do not see any fraud established. The learned trial judge relied upona passage from an Indian case referred to in the course of his judgmentto lay down the preposition that in matters relating to the interpretationof section 337, Courts are disposed to take a freer view, than on otheroccasions, of the question of fraud. Mr. Hayley, seeking to support thisjudgment of the learned trial judge referred us to a judgment of WoodRenton C. J. reported at 18 N. L. R. 95. In the course of hi judgmentthe Chief-Justice refers to two Indian cases reported in the Indian LawReports 6 Madras 365 and Indian Law Reports 22 Madras 320. Mr.Hayley also cited case reported at page 318. Bombay Reports, and alsoto another case in the AU-India Reports 1922, Allahabad 145. Thesecases have done nothing more than show that what may be consideredsystematic evasion of payments due under a decree, or obstruction tothe recovery of payments due, may in certain circumstances amount , to
SOERTSZ S.P.J.—William v. Premachandra.
fraud. Bet, in this case, on the most liberal view of the meaning to begiven to the word “ fraud ”, as understood either for the purpose ofconsideling section 337 of the Civil Procedure Code or for any otherpurpose, T am quite unable to see that a case of fraud has been made out.The judgment-debtor has admitted in his evidence that the judgment-creditor was a very good chettiar, meaning, I suppose, a very consideratecreditor. That must be so, for, when he had a decree for Rs. 18,000he agreed to recover that amount at the rate of Rs. 400 an year.Probably he was hoping, and so was the judgment-debtor, that theposition of rubber in the Ceylon market would improve, and both partieswere optimistic, unduly perhaps, thinking there would be such animprovement in the market that the debtor wuld be able to pay his debtsand the creditor would be able to recover the amount of his judgmentand so they went along till somewhat too late. Then the judgmentcreditor realised the difficulty he had got into, and the Kanakke Pullecame into the witness-box to say that the debtor who was himself awareof the bar by the lapse of the 10-year period persuaded him not to carryon with the execution proceedings and undertook to pay the debt.That substantial]y is the fraud that is relied upon. I do not see howthis can, seriously, be said to amount to a fiaud.
The bar imposed by section 337 is an absolute bar. There is noalternative but to allow the appeal with costs.
CahEkeratne, J.—I agree.