Mohamed v Khan (C.A. 18/1929.) [1929] EACA 116 (1 January 1929)

### APPELLATE CIVIL.

### Before THOMAS, J.

# JAN MOHAMED $(Appellant)$ (Original Plaintiff)

## FAZAL KHAN

## (Respondent) (Original Defendant). C. A. $18/1929$ .

- The Indian Civil Procedure Code, 1882, section 249-procedure after issue of notice to show cause against execution. Power of Court to consider the question of fraud. - **Held:**—That the power given to the Court to pass such order as it<br>may think fit, does not confer unlimited authority to do anything<br>which it may choose to do, but to make such order as may be<br>suitable within the limits of consider the question of fraud.

JUDGMENT.—This is an appeal from an order of the Resident Magistrate refusing to order execution of the decree in Civil Case No. 375 of 1925.

The action in respect of which the decree was obtained was commenced in March, 1925. The case came before the Court on the 11th of March, 1925, and stood over for settlement. Again on the 18th March it was stood over for settlement to the 8th April. On the 8th April the defendant was absent and subsequently the plaintiff proved the case *ex parte* and obtained judgment on the 14th April.

On the 24th January, 1928, a certified copy of the decree was duly registered; on the 28th December, 1928, the notice to show cause was issued on the defendant.

The defendant filed an affidavit showing that he had been employed for the last four years with the Uganda Railway; that the first intimation he had of the decree was on the 10th January. 1929; that the decree had been obtained by fraud; that the plaintiff had agreed to the withdrawal of the suit.

An application was made under section 108 of the Code of Civil Procedure, XIV of 1882, to set aside the decree. That application does not appear to have been proceeded with or was withdrawn.

Application for execution having been made notice was given to the defendant under section 248, more than one year having elapsed since the judgment.

The Resident Magistrate considered that he had power to inquire into the matters raised by the defendant in the affidavit to which I have already referred. Both plaintiff and defendant were represented by counsel. Witnesses were called for the defendant and cross-examined by counsel for the plaintiff. The plaintiff did not attend personally and called no evidence.

The Magistrate was satisfied that the Judgment had been obtained dishonestly and therefore that good cause had been shown why execution should not issue. The application for execution was accordingly dismissed with costs.

In a subsequent application objection was taken before the magistrate to the decision on the ground that the question of fraud was not within section 244 and so not within the scope of his powers. The magistrate was, however, of opinion that under section 249 the Court might pass such order as it thought fit when application had been made under section 248. From that decision the plaintiff has appealed. Now it seems that there has been a certain confusion in the dealing with this matter. The Act provides a procedure for dealing with applications for the execution of decrees. These start at section 230. An application has always to be made. If, however, more than one year has clapsed since the granting of the decree then notice has to be given to the debtor under section 248. The practice is for the judgment-creditor to apply for execution of the decree and not for the issue of a notice. It is then the duty of the Court to issue the notice. (See Gooroo Dass v. Modhoo, 6. W. R. Mis., 98). After such notice has been given the debtor may raise objections and where objections have been raised the Court by section 249 may consider such objections and make such order as it may think fit. Those objections should be considered even though the petitioner be not present.

The power given to the Court to pass such order as it may think fit does not confer unlimited authority to do anything which it may choose to do but to make such order as may be suitable within the limits of its power.

Now the power of the Court has been limited by section 244 which lays down certain powers of the Court on application for execution. And it has been decided by a series of cases that a Court has no power to consider the question of fraud on an application for the execution of a decree. In Sudindra v. Budan, 1886, 9 Madras, p. 80, it was held that under section 244 the questions to be decided in execution are questions relating to the execution, discharge or satisfaction of the decree. A question whether the decree was obtained by fraud or collusion is not one which related to the execution of the decree, but which affects its very subsistence and validity. Such a question can only be raised by a separate suit.

In Ramphal Rai and others v. Ram Baran Rai, 5. Allahabad Series (Indian Law Reports), page 53, the judgment says: "We do not think that it was competent for the Courts below to refuse execution of the decree. They had no power to go behind it for the purpose of entertaining certain equitable considerations, which appeared to render further enforcement of it unfair or improper. There was the decree declaring the decree holder entitled to receive so much money from the judgment-debtor and with that and that alone the Court had to deal . . .

The course adopted by the lower Courts virtually reopened the suit of $1878$ , and they allowed themselves to be influenced by matters which would have been good material for a defence in that suit, but which were not urged by the defendants as an answer to the plaintiffs' claim.

Similar decisions have been given in cases reported in 1964 I. L. R., 31. Calcutta, page 179; 1898 I. L. R., Bombay, 22. page 475; 1902. I. L. R., Calcutta, 29, page 810.

The Court not having the power to deal with a case of fraud (though satisfied that a case of fraud had been made out) might, under its power to make such order as it thought fit, have made an order staving the execution proceedings until the defendent had had an opportunity to take the necessary steps to have the decree set aside. That in my opinion would have been the correct order to have made in this case. The order dismissing the application must be set aside. The further hearing of the application will stand over for two months to enable the judgmentdebtor to take proceedings to set aside the judgment. In view of the special circumstances of this case I make no order as to the giving of security. Should further time be required the application should be made to the Lower Court prior to the expiration of the two months hereby granted. The Lower Court will exercise its discretion as to granting any further time upon such terms as it shall consider reasonable.

The appeal is allowed with costs.