BHARMU NAGAPPA NAIK Vs. MANIANATH DAS DESAI AND

JUDGEMENT

(1.) The present petitioner was the defendant in S. C. Civil Suit No. 162 of 1955 on the file of the Civil Judge, Senior Division at Kar-war. The respondents to this revision petition were the plantiffs in that suit. The plaintiffs sought for the enforcement of two surety bonds which had been executed hy the present petitioner, when he stood surety for the defendants in another suit namely Original Suit No. 147/1952 on the file of the Civil Judge, Senior Division at Karwar. Those two surety bonds were Exts. 18 and 25 in the suit before the trial Court. The teamed Civil Judge has given judgment in favour of the plaintiffs and has ordered the defendant to pay the plaintiffs a sum of Rs. 500/- together with the costs of the suit mid future interest at 3 per cent per annum thereon. Aggrieved by this decision of the learned Civil Judge, the defendant has preferred the present revision petition.

(2.) The learned counsel for the petitioner has urged two main contentions. His first contention is. that the terms of the surety bonds had to be strictly construed and that the lower Court has erred in taking into consideration the order which had been passed by the Court in O. S. No. 147 of 1952 in consequence of which the surely bonds were executed The contention of the learned counsel is that the terms of both the surety bonds are quite clear in themselves and that under the terms in these two bonds, the defendant was not under any liability to pay Rs. 500/- towards the mesne profits for the pericxl during which the defendants in O. S. No. 147/52 were in possession of the properties described in the schedule to that suit. The second contention which has been urged by the learned counsel for the petitioner is that a suit for the enforcement of the liability under the surety bonds was not maintainable. Similar contentions had been raised before the lower Court and they have been overruled. For reasons which will be mentioned hereinafter, I am satisfied atter hearing the learned counsel on both the sides, that there is no force in either of these contentions which have been urged on behalf of the petitioner.

(3.) As has been pointed out in the judgment of, the lower Court, it was necessary for the lower court to look into the surrounding circumstances and the order which had been passed in the Original Suit No. 147/1952 in pursuance of which the surety bond Ext. 18 was executed. Ext. 25 is the subsequent surety bond which has been executed at the stage when the original suit was in appeal before the District Court. That suit appears to have been one for a permanent injunction against the defendants. An application appears to have been made by the plaintiffs in O. S. No. 147/52 for an order of temporary injunction during the pendency of that suit. An order of temporary injunction appears to have been passed. Subsequently the defendants appeared and objected. Thereupon the Court ordered that the defendants might continue in possession of the property described in the schedule to that suit, subject to the condition that they should furnish satisfactory security in regard to the income from the properties, It was under those circumstances that the defendants in O. S. No. 147/1952 offered the security of the present petitioner. According to the order passed by the court in O. S. No. 147/52, it was on account of the income from the properties mentioned in the schedule to that suit and which the defendants of that suit were to be in enjoyment during the pendency of that suit, that security had to be furnished by the defendants. But the terms on which the security of the defendant was furnished under Ext. 18, do not appear to have been in accord with the order which had been passed by the court in O. S. No. 147 of 1952. According to the terms of the surety bond Ext. 18, the surety appears to have undertaken to see that possession of the property was given or delivered in accordance with the terms of any decree that may be passed. There was really no question of the delivery of any property, because, the suit itself was one for a permanent injunction. The subsequent bond, Ext. 25, which has been executed in pursuance of the order passed by the appellate court also does not appear to have been in accordance with the order passed by that Court. Under these circumstances, the terms of the surety bonds were really unmeaning with reference to the orders, in pursuance of which they had been executed. It is under these circumstancs that the learned Judge of the trial Court thought it fit and proper to construe the terms of these two surety bonds in the light of the orders pursuant to which these two bonds have been executed. The learned counsel for the petitioner has cited a decision reported in Pannaji Devchand v. Bas-appa Virappa. 45 Bom L R 510: AIR 1943 Bom 243 in support of the argument that the terms of a surety bond should be strictly construed and that any ambiguity therein should go to the benefit of the surety. This position has been recognised by the lower Court also and the learned counsel for the respondent has not seriously contested the correctness of this proposition. But, the contention of the learned counsel for the respondent is, that having regard to the nature of the suit in O. S. No. 147/52 and the circumstances in which the Court called upon the ''defendants therein to furnish security, the terms of these two surety bonds viz., Exts. 18 and 25 do' not have any meaning. It is contended by the learned counsel that under such circumstances it is permissible for the court under Section 95 of the Indian Evidence Act to look into the surrounding circumstances and the order of the court pursuant to which the bonds were executed, for properly construing the terms of the two surety bonds. This contention of the learned counsel finds support in a number of decisions amongst which may be cited the Privy Council decision in Raghunandan Prasad Singh v. Kirtya-nand Singh, AIR 1932 PC 131, (wherein at p. 132 their Lordships of the Privy Council have staled that the bond must be construed in the light of the order directing the security to be given) Mohendra Nath v. Satish Chandra, AIR 1934 Cal 569; Elava Pillai v. Muhammad Ibrahim Sahib, AIR 1948 Mad 302 and a later decision of the Privy Council reported in Kesar Chand v. Uttam Chand, 72 Ind App 165: (AIR 1945 PC 91). In a decision reported in Abdul Majid v. Abdul Majeed, 7 Mys LJ 159 also, the view has been taken that the terms of the surety bond, whenever there is any doubt, should he construed reasonably with reference to the surrounding circumstances and with reference to the Judges notes. On a consideration of these authorities, I am satisfied that the learned Judge of tho trial Court was correct in the circumstances of the present case, in having taken into consideration the orders of the court in consequence of which the surety bonds Exts. 18 and 25 were executed. When the terms of these two bonds are construed with reference to the said orders, it becomes clear that the defendant is liable to make good a sum of Rs. 250/- under each of these two bonds, in spite of the somewhat defective language that has been used in these two bonds.