KASIM Vs. LUCY KOCHUVAREED

JUDGEMENT

(1.) The decree holder, who is the appellant, sought to execute the decree against the surety, whose wife and legal representative is the respondent. The lower court held that the surety failed to establish that the decree was the result of fraud and collusion between the plaintiff and the defendant. Nevertheless, the lower court held that the surety was discharged because a decree without contest was not within the contemplation of the surety when the bond was executed and such a decree was excluded from the bond.

(2.) The surety was the paternal uncle of the defendant. The suit was instituted in forma pauperis for damages of Rs. 49,605/- or in the alternative for compensation of Rs. 31,579/-. The petition for suing as pauper was dismissed; and the plaintiff then paid court fee only on the amount of compensation and not on the damages claimed. The defendant filed his written statement, wherein he not only denied the suit claim but also claimed that he had to get some amounts from the plaintiff. A few days after the filing of the written statement, the plaintiff attached, before judgment, a coffee estate belonging to the defendant. The surety then gave the bond, Ext. D2, and got the attachment raised. The estate was then sold to third parties and the amount realised was taken by the surety towards amounts due to him from the defendant. The defendant subsequently filed I. A. No. 1599 of 1956, purporting to be under O.23 R.1 of the Code of Civil Procedure, withdrawing his defence; and the suit was then decreed as prayed for. Immediately thereafter the surety sought to get himself impleaded to contest the suit; but that was disallowed. He filed a Civil Revision Petition in the High Court, which was also dismissed with the observation that in view of S.145 of the Civil Procedure Code the surety might raise his legitimate contentions when action was sought to be taken against him. It was thereafter that the execution petition was filed for executing the decree against the surety and the surety contested.

(3.) In the appeal the appellant seeks to reverse the order of the lower court refusing execution against the surety. In the memorandum of objection the respondent questions the correctness of the finding of the lower court that it was not established that the decree was the result of fraud and collusion.