BNARAYANA RAO Vs. S KFRANCIS

JUDGEMENT

(1.) This appeal arises out of an order in an execution case on the file of the Subordinate Judge at Kolar. The appellants are the decree-holders in a suit O. S. No. 7 of 46-47 and the respondent is one of the sureties who is sought to be proceeded against to obtain satisfaction of the decree they have secured in that suit against one Aruldoss.

(2.) The plaintiffs filed their suit for the recovery of Rs. 6,500/- against the judgment-debtor and applied for attachment before judgment of his shop goods When the warrant was about to be executed the respondent and another Susinathan jointly entered into a surety bond Exhibit I on 15-9-1946 in favour of the Court agreeing to pay the entire amount of the decree that may be passed in the case and so the attachment was not effected. The plaintiffs' suit was ultimately decreed on 29-11-1948 and the same was confirmed by this Court in R. A. No. 108 of 47-48.

(3.) On 5-12-1948, almost immediately after the decree was passed in their favour, the decree-holders filed an execution application No. 12 of 1947-48 and applied for attachment of the judgment-debtor's moveables both in his shop and in his residence as well as two items of immoveable properties belonging to the sureties "as the decree amount was large and as one of the sureties had already alienated by way of mortgaging his property and the other also was about to alienate his" On that application, on 6-12-47 the Subordinate Judge ordered notice to the sureties and the attachment of immoveables On 8-12-47, the judgment-debtor filed an application under Order 41, Rule 5 (2), Civil P. C., for stay of execution. The learned Judge made an order on that application in the following terms :