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Madras High Court
Nathuram Sivaji Siltu And Anr. vs Krishna Rammolthy on 17 January, 1913
Equivalent citations: (1913) 24 MLJ 270


JUDGMENT

1. The District Judge appears to us not to have correctly apprehended the meaning of the expression ‘preventing the execution of the decree by force or fraud’ used in Section 48 of the Civil Procedure Code. The word ‘fraud’ has been always interpreted by this Court in a very liberal sense; See Visalatchi Animal v. Sivasankara Tawker (1881) I.L.R. 4 M. 292, Annamalai v. Ranjasami (1883) I.L.R. 6 M. 365, Venkayya v. Raghavachariar (1897) I.L.R. 22 M. 670 and Abdul Khadir v. Ahmed Shaiva Rowthen (1912) I.L.R. 35 M. 670. Any improper means resorted to in order to prevent execution would amount to fraud. The decree-holder alleged in his application for execution that the Judgment debtor was hiding himself in foreign territory in order to prevent execution. The execution diary shows that several warrants for the arrest of the debtor were returned unserved. The Munsif was satisfied that the respondent was deliberately evading the process of the court, though he did not refer to the occasions on which he did so. The prior execution proceedings ought to have been put in evidence and the parties ought to have been called upon to let in any further evidence that they could in order that the question at issue might be properly decided. We set aside the orders of both the Courts below and remand the petition for fresh disposal according to law. The costs hitherto incurred will abide the result.


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