JUDGMENT
1. This appeal arises out of execution proceedings. The appellants obtained a decree on the 18th of December 1895, against the opposite party. On the 12th of September 1907, they applied for the arrest of the judgment-debtor. This was the last one of the applications made within the period of 12 years from the date of the decree. Several attempts were made to arrest the judgment-debtor who successfully evaded them until one day he inadvertently attended the Court, thinking that he was protected from arrest by some provision of law. He was arrested, and he at once applied the Court to be allowed to apply in an insolvency Court to bi declared insolvent. He put in his application, and for two years the proceedings continued in the insolvency Court until they were finally struck off for want of prosecution. In the meantime, the appellants had applied for attachment of certain property. That property was released on an objection preferred by the judgment-debtor’s wife to the effect that it had been transferred to her by her husband. On the 1st of August 1910, the decree-holder made the present application for execution of his decree by means of the attachment of certain money deposited in Court to the credit of the judgment debtor. Objections were taken that the application was barred by time in that it had been made more than 12 years after the date of the decree. The Court of first instance held that the present application was one in continuation of the former application of 12th September 1807. It further held that the judgment-debtor had been guilty of fraud, and concluded that the application was not barred by Section 48 of the Code of Civil Procedure. On appeal, the District Judge held that the present application was not in continuation of the former application. He refused to decide the question as to whether or not the judgment-debtor had by fraud or force prevented the execution of the decree at some time within 12 years preceding the date of the present application. In this the lower Court was wrong. It ought to have gone into the question which was distinctly raised between the parties.
2. On the question as to whether the present application is one in continuation of the former application of 12th September 1907, I fully agree with the lower Court that it is not in continuation of the former application. The former application was for execution by arrest of the judgment-debtor. The present application is one for execution by attachment of a sum of money. But on the second point, I fully agree with the Court of first instance that the judgment-debtor has by fraud prevented the execution of the decree within 12 years immediately preceding the date of the present application. The case very much resembles that of Beni Prasad v. Kashi Nath 6 A.L.J. 401 : 2 Ind. Cas. 222. There cannot be any doubt that the judgment-debtor evaded arrest and, when finally arrested, spent two years’ time in pretending to prosecute proceedings in an insolvency Court–whereas he clearly never intended to press them. He has done his best and most successfully prevented the decree-holders from executing their decree within the period of 12 years. Therefore, in my opinion, the present application for execution is not barred by Section 43 of the Code of Civil Procedure. I threfore allow this appeal, set aside the decree of the Court below, and restore that of the Court of first instance. The appellants will have their costs in all Courts.
