KORATH Vs. GOPALAN NAIR

JUDGEMENT

(1.) THE decree-holder in O. S. No. 161 of 1118 of the crangannore Munsiff's court is the appellant in this case. THE appeal relates to an order in execution refusing to enforce a security bond. THE suit was one for redemption. It was decreed on 30. 6. 1119. THE decree-holder deposited the mortgage amount on 9. 11. 1119 and applied for delivery of the property. THE judgment-debtor appealed from the decree and the appellate court stayed delivery of the property till the disposal of the appeal on security being furnished by the judgment-debtor for mesne profits. THE appeal was dismissed and the judgment-debtor filed a Second Appeal in the High Court and again applied for stay of execution. THE High Court passed an interim order on 1. 5. 1122 staying execution of the decree on security. On 4. 5. 1122 a security bond was executed for answering the decree that might be passed in the second appeal. THE decree-holder contended that the security should be for mesne profits from the property from the date of deposit of the mortgage amount as he was kept out of possession of the property. THE High Court modified the original order and ordered the judgment-debtor to furnish security for mesne profits from the date of deposit of the mortgage amount for a period not exceeding one year from the date of the order at the rate of Rs. 175 a year. Accordingly a security bond was executed for mesne profits. THE second appeal was subsequently dismissed. When the decree-holder filed an execution petition for the enforcement of the security bond the surety objected contending that he was not liable to pay any amount under the bond as the High Court decree did not make the judgment-debtor liable for mesne profits. THE substance of the contention is that security bond was executed for answering the decree that might be passed by the High Court, that the liability of the surety is co-extensive with that of the judgment-debtor and that since the High Court did not make the judgment-debtor liable for mesne profits the surety also could not be made liable for the same. THE Munsiff's Court accepted this contention and disallowed the prayer of the decree-holder to enforce the security bond. In appeal filed by him before the District Court the order of the trial court was confirmed. Hence this second appeal.

(2.) BOTH the lower courts have taken the view that the security bond was executed under 0. 41, R. 5 (3) (c) C. P. C. According to that rule security has to be given by the applicant for the due performance of the decree or order that may ultimately be binding upon him. Under this rule the court has jurisdiction to demand security only for the due performance of the decree or order that may ultimately be passed. In this case the plaintiff had made no claim in the suit for mesne profits from the date of deposit of the mortgage amount, and the decree of the trial court did not award him any mesne profits. Neither in the 1st appellate court nor in the second appellate court did the plaintiff make any claim for mesne profits. Although the High Court purported to act under 0. 41 R. 5 in demanding security as a condition for staying execution the security that was demanded by the 2nd order was not one for the due performance of the decree that might be passed by that court. It cannot therefore be said that the security in this case is one given under 0. 41 R. 5 (3) (c) C. P. C.

(3.) IN 1936 Mad. 990 (Muthuswami Pillai v. Manikka Moopan)the plaintiff sued for a permanent injunction restraining the defendant from entering into possession of the plaint property. The plaintiff also applied for a temporary injunction during the pendency of the suit. At the hearing of the application for temporary injunction the parties entered into an agreement by which the defendant was given possession of the property during the pendency of the suit on his executing a surety bond to the effect that he would pay the mesne profits in case the plaintiff succeeded in the suit. The suit was ultimately decreed and the plaintiff sought to enforce the bond in execution. Following the decision in 2 INdian Appeals 219 Their Lordships held that the bond could be enforced in execution. Thier Lordships observed thus: "as stated by Their Lordships of the Privy Council in 2 INdian Appeals 219 the security bonds under such circumstances must be considered as proceedings in court importing a certain liability to be enforced in the suit against the defendant to that suit. Having undertaken this obligation it would not be open to defendant (1) or respondent (2) to resile from it and allege that proceedings were entirely irregular and that the court had no jurisdiction to enforce the terms which they had under taken to fulfil". IN AIR 1949 Mad. 152 (Ramamurthi v. Sagaraju), the guardian of a minor withdrew money from court under 0. 32 R. 6 C. P. C. upon a security bond. The minor on coming of age sought to enforce the security. It was held that the bond could be enforced by the court in execution in the exercise of its inherent power. IN 97 INdian Cases 787 (Sankunni Varier v. Vasudevan nambudiripad) certain persons executed a surety bond to the court undertaking to produce whenever required certain movable properties of the judgment-debtor which had been attached in execution of the decree. They defaulted to produce the movables when required by the court. The decree-holder sought to enforce the bond in execution and to realise the value of the movables. It was held that although the case did not come within S. 145 C. P. C. the court had inherent power to enforce the bond in execution. IN 20 TLJ 505 (Narayanan Pandalai v. Vishnu Namburi) the plaintiff obtained an order of injunction on furnishing security for 6 year's mesne profits. The suit was subsequently dismissed and the defendant sought to enforce the bond in execution. Following the Privy Council decision in 42 All. 158 it was held that the bond could be enforced in execution although the case would not come within the purview of S. 109 of the Travancore C. P. C. corresponding to S. 145 of the INdian C. P. C. The same view was held by the cochin High Court in 23 Cochin 408 (Chevunni v. Lexmidas Muranji ). IN that case the plaintiff attached before judgment certain articles belonging to the defendant. A stranger preferred a claim to these articles and prayed for the return of the same. They were ordered to be returned on security. The appellant executed a security bond undertaking to satisfy the decree if the claim petition would be dismissed. The claim was subsequently dismissed. It was held that the bond must be deemed to have been taken in the exercise of the inherent power of the court and that the court could in exercise of that power summarily enforce it in execution. To the same effect is the ruling reported in 3 Cochin Q 114 (Muhammthu v. Sanku Iyer ). IN that case, in order to avoid the appointment of a receiver for the plaint property the defendants offered to furnish security for the mesne profits of the property and the appellant executed the security bond. The suit went against the defendants. It was held that the bond was taken by the court in the exercise of its inherent power and that it could be summarily enforced by the court. IN the light of the above rulings the surety bond in question must be deemed to have been taken by the court in the exercise of its inherent power. These rulings also lay down that such bonds can be summarily enforced by the court without recourse to a fresh suit.