1. ' This Execution Application arises out of Suit No, 207/1978 decreed on 26-5-1981. The decree was passed on the basis of ex parte proof filed by the plaintiff/applicant. Admittedly, the execution application has been filed on 27-3-1990, after 8 years of the passing of the decree, alongwith an application under section 5 of the Limitation Act for condonation of delay in filing the execution application.
2. ' Notices of the execution application under Order XXI, Rule 22, C.P.C. And the application under section 5 of the Limitation Act for condonation of delay (C.MA. 1886/90) were issued to the Judgment-Debtors but were returned unserved. Finally publication of these notices was ordered on an application filed by the Decree-Holder and both the notices i,e, application under Order XXI, Rule 22, C.P.C. And the application for condonation of delay under section 5 of the Limitation Act, were handed over to the applicants Cover-in-Hand.
3. ' The applicant, after publication of the notices, filed a copy of the news-paper The Daily", Bombay (India), in which notice of the execution application, only has been published, but the notice to application under section 5 of the Limitation Act has not been published.
4. ' On 16-6-1992, when the case was fixed before the Court, the office had put up a note drawing attention of the Court to the fact that publication in regard to Miscellaneous Application No, 1886/90 (application under section 5 of the Limitation Act) has not been received.
5. ' After the appearance of the publication dated 16-3-1992, the advocate for the decree-holder filed a statement dated 4-6-1992 stating therein that the judgment-debtors have already been served by way of registered post as well as by the DHL and that the publication had also been made in the newspaper "The Daily" dated 16-3-1992. There was no mention about the missing of the publication of the notice in regard to the application under section 5 of the Limitation Act (CMA No, 1886/1990).
6. On 16-8-1992 the learned advocate of the decree-holder took one week's time to file his objection/comments on the letter dated 9-9-1991 which was received from the judgment-debtors who are at present living in India. However, no objections were filed to this letter. Instead the decree-holder filed an application dated 3-10-1992 under sections 48(2) and 151, C.P.C. Praying for execution of decree and condonation of delay in filing Execution Application.
7. ' Mr. Ansar Hussain, Advocate appearing for the decree-holder has stated that fraud has been played on the decree-holder by the judgment-debtors as due to their verbal assurances, the decree-holder was precluded from filing of execution application within time.
8. ' It will be pertinent to point out here that the grounds stated in support of the application under section 5 of the Limitation Act were entirely different. In the said affidavits the decree-holder stated that due to some misunderstanding he wa's confused for years and as such he could not file Execution Application.
9. ' The learned Advocate has relied on the case of (M.R.M.A.S.P. Ramanathan Chettiar v. Mahalingam Chetti) AIR 1935 Madras 8, wherein it was observed by the Hon'ble Court as under:-- "The mere fact of a fraud having been committed by the judgment-debtor can be availed of by the decree-holder for claiming exemption under section 48(2-A) and in order to succeed it is not necessary for him to show by evidence that on account of that fraud he was actually prevented from executing his decree."
10. The facts in the above-stated case were entirely different, in this case the judgment-debtors' had fraudulently alienated the property thus constituted fraud within meaning of section 48 C.P.C. In the same case the learned Court has also observed that in order to succeed the decree-holder has to show that he proceeded against the alienated properties and failed in obtaining the execution.
11. ' In the seine case it has further been observed that "in order to bring the case within the proviso of section 230. (section 48(2)) two things have to be proved. It has to be proved that the judgment- debtor used stratagems designed to prevent the execution of the decree and that the execution of the decree was by such means prevented."
12. In the present case there is no material whatsoever on record nor any such action has been attributed to the judgment-debtor except that they have A been giving verbal assurances that they will come to Pakistan and execute the sale-deed as such, in my opinion, this does not fall within the purview of the section.
13. ' The learned counsel has also relied upon the case of Saifur Rehman and others v. Haider Shah and another (PLD 1967 SC 344), wherein the Hon'ble Court has held as under: "The term 'fraud' in this section has to be interpreted in a liberal sense as including any improper means resorted to for preventing execution. It covers not only deceit but also circumvention."
14. ' In the above-cited case, the judgment-debtors had made an appearance after several notices and on their application, ex parte decree was set aside and the case was adjourned to the next date, on which date the decree-holder was absent. The case was consigned to the record while the other suit, which was also pending between the same parties, continued. The respondent, unaware of the fact that the execution application was consigned to the record, was under the impression that according to the order of the executing Court, the execution will be put up alongwith the suit and, as such, he took no further steps in the execution proceedings. In short, during the proceedings, the appellants in collusion with some of the officials, managed to annex the related execution case to another execution case and surreptitiously destroyed the related file of the execution application. As a result of this fraud, the Judicial Commissioner, who had called for the case, believing the correctness of the case, held that the related suit was clearly barred by time and the discovery of this fraud subsequently, was the ground on which the execution was declared to be within time.
15. In the present case, as I have already observed, there is not a single document on record to show that the decree-holder had proceeded and made efforts for execution of the decree and had approached the judgment-debtors. Or if the judgment-debtors have given any assurance in regard to their such efforts, to constitute any fraud or deceit or circumvention. The action of the decree-holder that only notice of the execution application was published in the newspaper and no notice of the application under section 5 of the Limitation Act for condonation of delay was published in the newspaper, proves otherwise.
16. ' There is no doubt that the executing Court cannot go beyond the decree as the decree has already been passed ex parte, and the conduct of the Judgment-Debtors has also proved that even after publication of the notice in the newspaper and after letter dated 9-9-1991, they have failed to appear. But the decree-holder has failed to prove beyond any doubt his own conduct for the delay in filing this execution application. The wordings of section 48(2)(a), C.P.C., are very clear as condition precedent for condonation of delay .Is "whether the judgment debtor has, by fraud or force, prevented the execution of the decree at time within six years immediately before the date of the application."
17. ' In my view, the decree-holder has not shown enough ground for grant of this discretion. The plea of the learned counsel for the applicant that verbal assurances of the judgment-debtors precluded the decree-holders from filing execution application has no force as no fraud has been proved from the record of the case or any other material produced by the learned counsel. Verbal assurances on the part of the judgment-debtors cannot form fraud. Be that as it may, the decree- holder should have taken steps to safeguard his interests by filing an execution application as a precautionary measure well within time which could always be withdrawn on the judgment- debtors' execution of the sale deed.
18. ' As laid down in various judgments by this Court as well as by the Hon'ble Supreme Court, the delay in filing a proceeding has to be explained by the party for each hour and each day and such a delay of three years on mere verbal assurances is beyond human imagination and cannot be accepted.
19. ' The upshot of the above discussion is that CMA No, 1886/1990 is dismissed. In the result, the main execution application is also dismissed as hopelessly barred by time.
20. ' Before parting with the Order, I would like to observe that while going through the record of the case, I have noticed that Nazir's References dated 7-11-1993 and 20-11-1993 are- still pending for Court's Orders. In the Reference dated 20-11-1993 the Nazir has solicited orders of the Court for the execution of sale-deed and has also referred to his earlier Reference dated 7-11-1993. The office should have actually fixed this case for hearing of the Nazir's References. Instead, the case was fixed for hearing of CMA Nos.1886/1990 and 2234/1992 which are applications under section 5 of the Limitation Act for condonation of delay and under sections 48(2) and 151, C.P.C. Respectively. Office is warned to be careful in future in fixing relevant references and applications.