AYPUNNI MANI Vs. DEVASSY KOCHOUSEPH

JUDGEMENT

(1.) THE appeal arises out of proceedings in execution. The appellant had obtained a money decree in O. S. No. 68 of 1122 on the file of the District Court. Trichur, against the 2nd respondent. The 2nd respondent filed A. S. No. 149 of 1955 in the travancore Cochin High Court against the said decree, and pending appeal, applied for stay of execution A condition stay was granted, and the 1st respondent executed a surety-ship bond on 12-7-1955. the material part of which runs as follows:

(2.) THE Kerala Act 91 of 1958 (hereinafter referred to as the Act) came into force on 14 7-1958. The decree-holder (appellant) filed K. P No. 98 of 1960 on 17-91960 for execution both against the judgment debtor and against the surety. The judgment-debtor filed objections claiming himself to be an agriculturist entitled to the benefits of the Act, and further filed M. P. No. 1461 of 1960, depositing the four instalments as required by the Act and claiming benefits thereunder The surety, (the 1st respondent) also filed objections contending that execution against him, should be limited to the extent to which it would be available against the judgment-debtor and no further The court below held that the Judgment-debtor was an agriculturist entitled in the benefits of the Act. but that surely was not 11 further held cm a construction on the surety-ship bond above extracted, that on the terms thereof, the liability of the surely was only co-extensive with that of the judgment-debtor As the 5th instalment contemplated by the Act was in arrear the lower court directed that the decree-holder would be entitled to proceed against both the judgment debtor and the surely for the said instalment and also for the subsequent instalments

(3.) COUNSEL for appellant, contended that the suretyship bond must be construed strictly in accordance with the terms of the bond and that thereunder the 1st respondent is liable to pay the amount due as per the decrees of the trial court and of the appellate court. It was further contended that the equation of the position of the surely to that of the judgment-debtor by the terms of the bond is only in regard to the processual modes by which execution could be levied and not in regard to the measure of their obligations Counsel for the surety contended that both on the terms of the bond as well as on the provisions of S. 198 of the Indian contract Act, the measure of the obligation of the surely was co-extensive with that of the judgment-debtor.