Judgment :- 1. The 3rd defendant in O. S. No. 369 of 1094 of the Court of the District Munsiff, Karunagapally, is the appellant in this second appeal. He challenges the correctness of the decision of the courts below to the effect that the execution petition dated 28-10-1121 is not barred by limitation in view of S.48 (2) (a) of the Code of Civil Procedure: "Nothing in this section shall be deemed - (a) 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, prevented the execution of the decree at some time within twelve years immediately before the date of the application." 2. The 3rd defendant raised a plea of discharge by a petition dated 26-10-1102. The petition was dismissed by the Munsiff's Court on 2-1-1104. Against the order of dismissal there was an appeal and also a second appeal. The second appeal was dismissed on 3-6-1106. 3. The only question for consideration as stated in the order of reference dated 24-10-1957 is: "Whether a plea of discharge by the judgment-debtor which is later found to be false, will amount to preventing the execution of a decree by fraud or force within the meaning of S.48 (2) (a) of the C. P. C." It is common ground that there has been no prevention of execution by "force" and that this second appeal has to be allowed if our conclusion is that the raising of a false plea of discharge will not amount to a "fraud" preventing the execution of the decree. 4. The reference has been made because of the divergence in the views expressed in Ithakin v. Brahmadathan A.I.R. 1950 T.C. 80 and Ayyanperumal Pillai v. Oommen 1955 K.L.T. 306. Para.2 of the order of reference reads as follows: "There is a Division Bench Judgment of the Travancore-Cochin High Court in Krishna Pillai Ayyanperumal Pillai v. Geevarghese Oommen (1955 K.L.T. 306) to the effect that it will not amount to fraud. On the other hand, there is another Division Bench ruling of the Travancore-Cochin High Court in A.I.R. 1950 T-C 80 (Ithakin v. Brahmadathan) to the contrary." 5. In A.I.R. 1950 T-C 80 the court said: "The defendant has been making systematic attempt to delay execution by frivolous and dishonest objections. On the other hand, there is another Division Bench ruling of the Travancore-Cochin High Court in A.I.R. 1950 T-C 80 (Ithakin v. Brahmadathan) to the contrary." 5. In A.I.R. 1950 T-C 80 the court said: "The defendant has been making systematic attempt to delay execution by frivolous and dishonest objections. Such conduct amounts to fraud under S.41, cl. (2) of C.P.C and the period during which such false objections were pending has to be excluded in computing the period of limitation." S. 41 of the Travancore Code of Civil Procedure, 1100, corresponds to S.48 of the Indian Code of Civil Procedure, 1908. What the section contemplates is a fresh starting point of limitation and not the exclusion of any period. As pointed out by Sankarasubba Aiyar, J., in 34 T.L.J. 425: "S. 41 does not contemplate a deduction of any particular period from the prescribed period of 12 years. What the section states is that where force or fraud is proved, that gives a fresh starting point of limitation under sub-section (2). The point is covered by authority. In I. L. R 34 All. 20 it was held that upon a correct interpretation of Clause.2 of S.48 C. P. C. 1908, the effect of the proviso embodied in that clause is that the bar to execution created by the first clause of the same section is removed for a period of 12 years from any date on which the judgment-debtor has by fraud prevented the execution of the decree'. The same opinion has been taken in Venkayya v. Raghava 22 Mad. 320,8 I.C. 805 and 54 I.C. 279" That such is the position is not disputed before us and is clear from A.I.R. 1951 S.C.16 Yeshwant v. Walchand wherein their Lordships said: "We have here definite findings of both the Courts below that there was fraud preventing the execution of the decree within the meaning of S.48 Civil P. C. The appellant thus escapes the bar of the 12 years' period and he has a fresh starting point of limitation from the date of the fraud for S.48 C. P. C. In other words, the decree-holder has another 12 years within which he cap execute his decree". 6. In Bandhu Singh v. Kayastha Trading Bank A.I.R. 1931 All. 6. In Bandhu Singh v. Kayastha Trading Bank A.I.R. 1931 All. 134 Sulaiman and Young, JJ., said: "The Subordinate Judge has held that in view of the frivolous objections taken by the judgment-debtor from time to time there was fraud or force within the meaning of S.48, Civil P.C., which extends the period. He has relied on the case of A.I.R. 1922 All 145 in support of his view"; "The mere fact that there has been a prolongation of the execution proceedings due in part to the objections raised by the judgment-debtor from time to time, would not itself amount to fraud or force within sub-section (2), sub-cl. (a) of that section. The raising of an objection, however frivolous, would not ordinarily amount to practising fraud on the decree-holder, for it can be easily met and disposed of by the Court. Fraud must be of a nature which the decree-holder is not able to discover at the time and which helps the judgment-debtor in deceiving him and gaining time." 7. In Bishwanath Prasad v. Lachmi Narain, A.I.R. 1935, Pat. 380 Wort, J, (with whom James, J., agreed) said: "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 1922 All. 145, 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 decision has been diminished by the decision of a Full Bench of the same High Court in 1932 All. 273, 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." 8. 273, 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." 8. In Tulsi Ram v. E.D. Sasoon & Co. Ltd., A.I.R. 1936 Lahore 843, Coldstream, J., dealt with the matter as follows: "The judgment in 1922 All. 145 was by implication, at any rate, dissented from by a Division Bench of the Allahabad Court in 1931 All. 134 and was not accepted as correct by the Patna Court in 1935 Patna 380, and I am unable to hold that the mere raising of objections so as to prolong execution proceedings beyond the period of limitation must, in all cases, be regarded as fraud for the purposes of S.48." 9. In (1940) 30 T.Q. 445 Madhavan Pillay, J., (with whom Varghese, C. J., agreed) said: "The fundamental question for decision by us, so for as this appeal is concerned, is whether the objection petition of 14-12-1107 and its prosecution to a final conclusion in both the courts can in any sense be regarded at constituting fraud within the meaning of S.41, Clause.2, C.P.C. Reliance was placed on the decisions of this court in 18 T.L.J. 792, 26 T.L.J. 439, 27 T.L.J. 1106 and 28 T.L.J. 545 for the broad proposition that the delaying of execution by frivolous and future contentions by the judgment-debtor is 'fraud' within the scope of clause (2) of S.41. It is not wrong to say that judges who decided 18 T.L.J. 792 were almost entirely influenced by the decision of the Allahabad High Court in A.I.R. 1922 Allahabad 145. It is noteworthy that, in subsequent rulings of the Allahabad High Court, it was held that the dictum was too broadly stated in A.I.R. 1922 Allahabad 145. (Vide A.I.R. 1931 All. 134 and A.I.R. 1932 Allahabad 273). Subsequent to the clarification of the statement of the law by the later Allahabad decisions, the Patna High Court in A.I.R. 1935 Patna 380 refused to follow the broad statement of the law contained in A.I.R. 1922 Allahabad 145. The effect of the decisions of the Allahabad High Court in A.I.R. 1922 Allahabad 145 is, therefore, considerably weakened by the later decisions by the same High Court as also by the Patna High Court. The effect of the decisions of the Allahabad High Court in A.I.R. 1922 Allahabad 145 is, therefore, considerably weakened by the later decisions by the same High Court as also by the Patna High Court. The later rulings of this court in 26 T.L.J. 439, 27 T.L.J. 1106 and 28 T.L.J. 545 did but follow the ruling in 18 T.L.J. 792 and have made no reference at all to the later decisions of the Allahabad High Court nor to the statement of the law by the Patna High Court in A.I.R. 1935 Patna 380." 10. In A.I.R. 1947 Mad. 216 Venkata Lingam v. Venkata Narasimha, Patanjali Sastri, J., said: "It was, of course, his object to delay, if not to defeat, execution to whatever extent possible by raising, through his pleader, all pleas which law and procedure make available to him. But we are unable to hold that resistance to execution on legal grounds, however ill-founded, could amount to preventing execution by fraud within the meaning of sub-section (2) of S.48. We agree with the observation in A.I.R. 1931 All. 134: 'the raising of an objection, however frivolous, would not ordinarily amount to practising fraud on the decree-holder for, it can be easily met and disposed of by the Court." 11. In Prayagdas Shankerlal v. Indirabai A.I.R. 1948 Nagpur 189, Rose, J., said: "The other details regarding the fraud are simply that the judgment-debtor has been contesting the decree-holder's applications only with the view to delay the execution of the decree. It is urged that that is either force or fraud, and reliance is placed on A.I.R. 1922 All. 145. With the utmost respect to the learned judges who decided that case, I am unable to see how a contest which the law permits and which is carried out in open Court can amount either to force or to fraud. This decision was not approved in a later Allahabad decision, namely, A.I R.1931 All. 134. I respectfully agree with the learned judges in the later case that: 'Fraud must be of a nature which the decree-holder is not able to discover at the time and which helps the judgment-debtor in deceiving him and gaining time'. The previous Allahabad decision was also not followed in A.I.R. 1935 Patna 380. 134. I respectfully agree with the learned judges in the later case that: 'Fraud must be of a nature which the decree-holder is not able to discover at the time and which helps the judgment-debtor in deceiving him and gaining time'. The previous Allahabad decision was also not followed in A.I.R. 1935 Patna 380. Wort J. holds there that it is neither force nor fraud when the judgment-debtor takes advantage of the procedure allowed by the law and contests an execution application. It was said that may be the case when there is substance in the contest, but when the objections made are frivolous then they must be regarded as fraud. Again, I am unable to agree. There can be no fraud unless there is a mistake as to fact and the other side is misled by it. In a contest in a Court of law there is no mistake as to fact when the other side knows the facts and contests them, setting out a different set of facts. He is not misled, and as regards the law, every one is taken to know the law and consequently, whatever legal propositions are set up, there is no fraud; again, the other side is not misled because he contests and contends that the law is otherwise. There can be no fraud when a person is not deceived and knows the facts:" 12. In 1955 K.L.T. 306 Subramonia Iyer, J., said: "A plea of discharge of the decree amount falsely raised and false to the knowledge of the decree-holder cannot by itself in our view amount to fraud within the meaning of S.48 (2) of the Code of Civil Procedure. If authority be needed for this proposition reference may be made to A. I. R.1948 Nagpur 189." 13. We entertain no doubt that the correct view is the one expressed in A.I.R. 1931 All. 134, A.I.R. 1935 Pat. 380. A.I.R. 1936 Lah. 843, (1940) 30 T.L.J. 445, A.I.R. 1947 Mad. 216, A.I.R. 1948 Nag. 189 and 1955 K.L.T. 306 and that the execution petition should be considered as barred by limitation. 14. It follows that the second appeal has to be allowed. Judgment accordingly, though in the circumstances of the case without any order as to costs. Allowed.