JUDGMENT 1. This is an appeal in a proceeding for the execution of a decree for money and is governed by the provisions of sec 230, C. P. C. The decree was passed on the 4th May 1892, in the Court of the Subordinate Judge at Benares. There were intermediate proceedings for execution; and on an application for execution having been made in 1899 the judgment-debtor applied for setting aside the decree under sec. 108, C. P. C. She pleaded that summonses had not been duly served on her. An application was presented to the Benares Court on the 25th February 1899, and on the same date an order was made fur the stay of the proceedings in the Court of the Subordinate Judge of Saran, to which Court the decree had been transferred for execution. On the 23rd December 1899, the Subordinate Judge of Benares held that the summons in the suit had been duly served on the Defendant, and he came to a conclusion which is expressed in these words,-" In my opinion the application is frivolous and the object simply is to delay the execution of the decree." Applications for execution were since then made from time to time. The last application, the one covered by the present proceeding, was presented on the 28th July 1904, that is to say, more than 12 years after the decree. The Subordinate Judge of Saran has held that the decree is now barred and incapable of execution under sec. 230, C. P. C. 2. It was contended before the Subordinate Judge that the conduct of the Defendant was fraudulent when she applied to set aside the ex parte decree against her, and on that account, the final clause of sec. 230 applied to the present case and that the decree-holder is entitled to prosecute the present application for execution notwithstanding the expiry of the 12 years from the date of the decree. The Subordinate Judge in his order says that the conduct of the Defendant did not constitute acts of fraud, and therefore the last clause of sec. 230, C. P. C., did not apply. 3. In this view we cannot agree with the Subordinate Judge. The Subordinate Judge of Benares who dealt with the proceedings under sec. The Subordinate Judge in his order says that the conduct of the Defendant did not constitute acts of fraud, and therefore the last clause of sec. 230, C. P. C., did not apply. 3. In this view we cannot agree with the Subordinate Judge. The Subordinate Judge of Benares who dealt with the proceedings under sec. 108 of the Code says expressly that the conduct of the Defendant in presenting the application to set aside the decree was frivolous and intended to delay the execution proceedings. This was undoubtedly fraudulent conduct on the part of the Defendant. The provisions contained in the last clause of sec. 230, therefore, apply to the present case. 4. But the section provides for the exercise of discretion by the Court to which the application for execution is presented. The words are,-" nothing in this section shall prevent the Court front granting an application for execution of a decree after the expiration of the said term of twelve years, etc.," that is to say, if the Court to which the application for execution is presented sees, notwithstanding the expiry of 12 years, that the decree-holder had been diligent in proceeding with the execution of the decree from the date that the decree had been passed and the judgment-debtor's conduct was such that it caused unnecessary delay in levying execution, he or she having acted fraudulently or having used force, the Court ought to allow execution. 5. This is a matter which depends on the consideration of facts, and we are not in possession of all the facts necessary to come to a conclusion on this point. It is for the lower Court to ask the parties to adduce evidence on this question and then to exercise a sound discretion to allow the execution proceedings or not. 6. We are accordingly obliged to send the case back to the lower Court for decision in accordance with the observations made above. 7. In this particular case we find that the decree-holder had been sufficiently diligent since 1899, but there is nothing on the record to indicate what he was doing from 1892 to 1899; whether he was as diligent as he should have been in trying to levy the amount of the decree by process of execution. This is a matter to which we draw the special attention of the Subordinate Judge. This is a matter to which we draw the special attention of the Subordinate Judge. We make no order as to costs of this appeal.