Wort, J.

1. Two points relating to limitation were the subject-matter of the decision of the learned Judge in the Court below and have been argued in this Court. It is said by the appellant judgment-debtors that this fourth application for execution which was dated 12th December 1932. was barred by limitation by reason of the period provided by the Limitation Act. namely three years, and also by reason of S. 48, Civil P.C. The application for execution to which I refer was an application to execute a decree obtained on a compromise as far back as 2nd August 1913. There is some controversy as to whether the, application to which I have made reference was an application to execute that decree or whether it was an application to execute a later compromise referred to in one of the earlier applications for execution. Shorn of the unnecessary details, what happened was this:

After the compromise of 1913, execution was taken and there was an application in 1919 by the judgment-debtors to set aside the sale which had taken place as a result of that application for execution. This was compromised on 5th July 1919. under which certain payments were to be made not later than 1st January 1922. Another term of that compromise was that a certain remission of Rs. 5,000 in addition to an earlier remission of Rs. 5,000 in favour of the judgment-debtors was to be made. It was provided that failure on the part of the judgment-debtors to carry out the compromise would result, according to the terms of the compromise, in the confirmation of the sale which had taken place. In the same month, that is on 8th July 1919, as a result of this compromise, the execution case was dismissed. A second application in execution was made on 11th March 1922. Three months later the judgment-debtors commenced the suit in which the relief sought was a declaration that the compromise decree and the compromise in the execution case were not binding upon them. The reason for their contention it is unnecessary to state. In the suit an injunction was obtained. This injunction was received by the executing Court on 31st October 1932. It is necessary to state in this connection that that injunction was in force up to 14th July 1923, and as a. result of that injunction, on 8th June 1923, the second execution case was struck off. The suit to which I have referred, after the decision by the Subordinate Judge came to this Court on appeal; it was remanded and again re-heard coming again to this Court and ultimately in March 1932, this Court dismissed the plaintiffs suit, holding, as it would appear, that both the compromise of 1913 and the compromise of 1919 were valid and binding upon the plaintiffs.
2. The third execution was taken out in July 1923 and in May of 1927, after certain obstructive proceedings by the judgment-debtors (the proceedings have been described as obstructive), certain properties were sold. An application was made a few months later to set aside the sale. This application was dismissed and the sale was confirmed. The intervening period between 3rd December 1927, the date of the confirmation of the sale, and 12-12-1932, the date on which the fourth application was made was taken up by the litigation on what has been described as a "title suit" in the Subordinate Judge's Court and in this Court. Now, the judgment-debtors in the Court below contended, as I have said, that the matter was barred both under the Limitation Act, and under S. 48, Civil P.C. S.48 prohibits an application for execution after a period of 12 years has elapsed from the date of the decree or subsequent order which directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, and it was one of the contentions of the decree-holder respondent that this compromise of July 1919 was the date from which the limitation was to run under S. 48 as the compromise was a subsequent order directing the payment of money. There have been, it would appear, differences of opinion as regards this matter in the various High Courts, but, so far as we are concerned, the matter is concluded by the decision of this Court in Gobardhan Prasad v. Bishunath Prasad, 1921 Pat 340 = 58 I C 393. That was a case similar to the one with which we have to deal. There was a subsequent compromise order made in the execution proceedings and there it was contended that the compromise order in the execution proceedings was an order contemplated by S. 48 (1) (b), Civil P.C. Courts and Adami, JJ. held that it was not. That decision, as I have said, is binding upon us and concludes the matter. The decree-holder therefore cannot in this case date the period of limitation from July of 1919. But there was another aspect of this particular point raised in this Court for the first time and that is that in this execution proceeding the decree-holder was not executing his decree of 1913, but he was executing the compromise of 1919. That is contrary to facts, contrary to the argument addressed and contrary to the case made by the decree-holder in the Court below. The fact recognized by the learned Judge in the Court below was that at least the first three applications in execution were applications to execute the compromise decree of 1913. and whether, as is the contention of the learned advocate for the respondent, that decree of 1913 is to date from 1915 by reason of its terms, or from 1913 is immaterial having regard to the long period which has elapsed since that compromise was entered into.

3. But to revert to the point with which I was dealing, it is clear from the record of the case that the decree-holder in the first three applications was attempting to execute the compromise decree of 1913, and indeed it could not be otherwise. I have sufficiently indicated the terms of that compromise and the most that could be said was that the failure on the part of the judgment-debtors to comply with the terms threw the decree-holder back on his rights and incidentally the judgment-debtors on their liabilities under the decree of 1915 or 1913 as the case might be. Whether the decree-holder in executing that decree could add any term of the compromise of 1919 is entirely immaterial for the purpose of deciding the question, whether he was executing that compromise or the earlier one. This matter did come up to this Court as in the execution proceedings (the second execution case I think it was) the decree-holder attempted to base his account on the compromise of 1919. The Subordinate Judge held against the decree-holder on that point, and this Court characterized that order as an administrative order and one with which this Court could not interfere. But I repeat myself that it is quite clear that what the decree-holder was attempting to execute was the decree of 1915 (3) and it is upon that basis that the judgment of the learned Judge in the Court below proceeds. The decree-holder now seeks to take advantage of the provisions of S. 48 (2) (a) to the effect:

Nothing in this section shall be deemed to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, pre vented the execution of the decree at some time within twelve years immediately before the date of the application.
4. It is contended that the obstruction met with by the decree-holder throughout these proceedings, particularly between 1915 and 1919 during the third execution case, is to be subtracted from the total period as being a case of prevention of the decree-holder by fraud or force from executing the de-croc. It is quite unnecessary to define "fraud" as used in S. 48 and I should imagine that it was used in the ordinary juridical sense of the term. But what is quite clearly contemplated, apart from the definition of the term itself, is some action on the part of the judgment-debtor which prevents the; decree-holder from taking out execution proceedings and thus allowing time to run against him or some action by the judgment-debtor which entices the decree-holder to hold his hand. It seems to me that a very simple test as to the meaning of the sub-section which I have read can be made by putting a very simple question. In this case the execution proceedings were started, as I have said, in 1915. Now, so long as no final order was made in that execution proceeding it is quite clear that time was not running at any rule in the sense that whatever time that execution case had taken, even if it be a period of 20 or 30 years, it could not be said to be barred by limitation. When once the final order was made, time began to run. But so long as the application was made within a period of three years of the last order in the execution case that application for execution would certainly be within time within the meaning of the Limitation Act. Now, could it be said that, although the decree-holder was proceeding with the execution met by one objection after another, obstructive as those objections might be, the decree-holder was prevented by fraud from executing his decree. It seems to me that it would be stretching the language of the section beyond what was legitimate to hold that the judgment-debtors, however obstructive they might have been, were preventing the decree-holder from executing his decree by fraud merely because they took advantage, of the procedure which was allowed by law. It is true that there is a decision of the Allahabad High Court in Latta Prasad v. Suraj Kumar, 1922 All 145 = 65 I C 877 = 44 All 319, where the learned Judges appear to be of the opinion that a judgment-debtor's defence under S. 48, Civil P.C. by obstructive proceedings such as took place in the case before us was fraud within the meaning of the section. The value however of that derision has been diminished by the decision of a Full Bench of the same High Court in Gobardhan Das v. Dau Dayal, 1932 All 273 = 138 I C 583 = 54 All 573 (F B), which arrived at a somewhat different conclusion. In my judgment it is impossible to hold that however obstructive (I am assuming that there was obstruction) the judgment-debtors might have been there was fraud within the meaning of S. 48 of the Code,

5. I next come to the point of period of three years limitation. The last order in the third application was made on 21st December 1928, and the fourth application was made on 12th December 1932. It is obvious that the decree-holder was under the obligation of bringing over that period if he was to save his fourth application which appears to have been considerably beyond the period of three years provided by the Limitation Act. From the point, of view strenuously contended for in the latter part of the argument advanced on behalf of the respondents, the application was hopelessly barred by limitation. The contention is, as I have said, that the execution proceedings throughout were based on the compromise of 1919. It is clear that the first three applications were nothing of the kind, but the fourth application purports to be so. If the fourth application was an application for execution of the compromise of 1919, then the period of 12 years had elapsed. From the point of view of the argument on behalf of the decree-holder in this connection there would be three periods which he would be entitled to deduct from the period of 12 years, first the period of eight months and fifteen days during which the Suborned Judge's injunction was in operation; secondly, two years and five months, the period between the compromise of 1919 and the date upon which the judgment-debtors had to comply with it and thirdly three years and nine months, the period during which the so-called title suit was pending; the total thus made up is a period of over six years and ten months, which still would leave the fourth application in execution barred by limitation. If it is treated, as I think probably it must be treated, as an application for the execution of the original decree, ' then the period obviously dates, as. I have indicated, from 21st December 1928. Now the matter can be put shortly in this way. There was nothing to prevent the decree-holder from executing his decree of 1915. Whatever his desire might have been, he could have executed that decree as I have said. There was no stay of execution there was no injunction during the period from 1923 to 1932. All that had taken place was a decision by the Subordinate Judge of the Darbhanga Court holding that the compromise of 1919 was not valid and was not 'binding upon the judgment-debtors. It may be that the decree-holder was prevented from executing the compromise of 1919; but that did not prevent him from taking out execution of the decree of 1915 which in my judgment was the only decree that he could execute. As there was no stay and as the decree-holder was not prevented from executing that decree and as he allowed more than three years to elapse his fourth application was barred by limitation. Whether it was barred under S. 48, Civil P.C. or under the Limitation Act, for the considerations which I have stated, it seems to me that the execution was barred by limitation and that the learned Judge in the Court below was therefore wrong in the conclusion at which he had arrived.

6. For these reasons the appeal is allowed with, costs.

James, J.

7. I agree.