SHOUKAT MOHAMMED HATROT Vs. NARAYANA GOVINDA NAIK ANEKHINDI

JUDGEMENT

(1.) The appellant is the second judgment-debtor who was one of the sureties who executed a bond under Cr.4 , R.6 CPC in the form prescribed in Appx.G'. But the bond was executed in the name of the Court and not in the name of the Presiding Officer or any Officer of the Court.

(2.) It is urged by Mr. K.A.Swamy, firstly that since the bond is not executed in the name of the Presiding Officer or any other Officer of the Court, the Court being not a juridical person, the bond is inexecutable. Secondly it is urged that the surety bond cannot be enforced in the execution proceeding but that it can be enforced only in a separate suit filed against the sureties.

(3.) He has relied on the decision in Raghubar Singh v. Jai Indra Bahadur Singh AIR 1919 PC 55=46 IA 228. In that case, the surety bond created a charge on the immoveable property but there was no personal liability undertaken by the surety. Their Lordships of the Privy Council held that, since there was no personal liability incurred under the surety bond, though it created a charge upon the immoveable property, S.145 CPC was not applicable. Their Lordships further held that S.47 CPC was not applicable since the surety was not a party to the suit which ended in a decree. But in the present case, the surety bond imposed a personal liability on the sureties. Hence, Sec.145 CPC would be applicable to the facts of the present case. Consequently, the sureties must be deemed to be parties to the suit within the meaning of S.47 CPC. Hence, it is not necessary for a separate suit being filed against the surety. The observations of the Privy Council in the abovesaid case that the only mode of enforcing the liability created by the surety bond is by the Court making an order in the suit upon an application to which the sureties are parties that the property charged be sold is made in the context of the finding that the surety bond could be enforced in that case only by a suit since, S.47 CPC was held inapplicable.