UNNIKRISHNA MENON Vs. VENKITAPARASURAMA IYER

JUDGEMENT

(1.) THE dispute regarding the enforceability of a security bond executed by the 5th defendant in O. S. No. 36 of 1115 on the file of the Trichur District Court has given rise to this appeal. THE plaintiff in the suit had instituted the suit as an interpleader suit praying that the amount due under a promissory-note which he had executed in favour of the 4th defendant as the mother and guardian of defendants 1 to 3 who were minors on the date of the note, may be paid to the rightful claimants among the defendants. THE 5th defendant as the father of defendants 1 to 3 appears to have put forward a claim as against the 4th defendant to receive the amount due under the promissory note. In view of this rival claim, the plaintiff deposited the amount in Court and prayed that a decree may be passed in favour of the rightful claimant and that he may be given his costs out of the amount deposited. By the ultimate decree passed in the case the 5th defendant was allowed to draw the amount on security. It was also directed that in case he did not care to furnish security within a reasonable time, the 4th defendant may apply to the court to have the amount invested in other proper securities for the benefit of the minors. On 11. 8. 1117 the 5th defendant filed M. P. 1313 praying that the amount due to the share of defendants 2 and 3, who had not attained majority even at that time, may be disbursed to him after taking his own security bond. On that petition the court passed an order on 13. 8. 1117 directing the 5th defendant to furnish security for Rs. 1394-1-11 and future interest at 41/2%. On the same date he executed a bond in favour of the Court tendering the properties described therein as security for the aforesaid amount and undertaking that he would pay the amount to defendants 2 and 3 on their attaining majority and on demand being made for that amount. THEre is a further undertaking in the bond that on demand being made for the amount, he would deposit the same in court and in case of default, the same may be recovered from himself and the properties secured. On 14. 8. 1117 the Court passed an order accepting the security bond. Accordingly the amount was disbursed to the 5th defendant. Defendants 2 and 3 have filed the present execution petition against the counter-petitioner who is the son of the 5th defendant by his caste wife and who is stated to be in possession of the assets left by the 5th defendant on his death. THE prayer in the execution petition is that the amount due to defendants 2 and 3 may be allowed to be recovered by enforcing the security bond against the properties specified therein and also against the assets of deceased 5th defendant. THE counter-petitioner resisted the execution petition on several grounds, one of which was that the execution petition was not sustainable and that the rights, if any, of defendants 2 and 3 arising out of the security bond can be sought be enforced by them only in a fresh suit. THE lower court considered this as a preliminary objection and held that the objection has to prevail. Accordingly the execution petition was dismissed without dealing with the other objections on their merits. Defendants 2 and 3 have come up in appeal challenging the correctness of the lower court's order.

(2.) THE lower court has taken the view that the security bond in question is a bond taken under Clause. 2 of R. 6 of O. XXXII of the Code of Civil Procedure and that, therefore, it cannot be enforced in execution against the 5th defendant under S. 145 of the Code as if the 5th defendant's position was that of a surety. THE decision in Kurugodapp a v. Soogamma (AIR 1918 Madras 661) is also cited in support of the position that a security bond taken under O. XXXII, R. 6 (2)cannot be enforced under S. 145 of the Code of Civil Procedure. It cannot be laid down as a general proposition that the provisions of S. 145 and of O. XXXII, R. 6 (2), are mutually exclusive. THE nature of the bond is what really matters in determining the question whether it is one falling under S. 145 or under O. XXXII, R. 6 (2 ). A next friend or guardian of the minor is entitled in his own right to receive the property of the minor with the leave of the court. In granting such leave the court will make sufficient safeguards for protecting the interests of the minor, and this is usually done by calling upon the next friend or guardian to furnish security. As is indicated in Clause. 2 to R. 6 of 0. XXXII the object of taking such security is to "protect the property from waste and ensure its proper application". Where such is the nature of the bond in a particular case in the course of the execution of a decree in favour of the minor, there will be nothing further to be done in the matter of execution, discharge or satisfaction of the decree. THE minor's complaint, if any, against the next friend or guardian will be that the minor's property has not been properly utilised and that the next friend or guardian should be called upon to account for such property. This will certainly be a matter to be agitated in a fresh suit. A bond giving rise to such a complaint will not be a bond coming under S. 145 of the Code of Civil Procedure. THE principles enunciated in Kurugodappa v. Soogamma (AIR 1918 Madras 661) go only to this extent. That it is so, has been explained by a Full bench of the Madras High Court in Sankara v. Sanyasayya (AIR 1933 Mad. 678 ). In that case the court had merely ordered that the next friend of the minor decree-holder should be allowed to draw out the money paid into court by the judgment-debtor and to invest the same for purchasing Government promissory notes to be deposited in court. Another person executed a bond binding himself responsible for the amount in case of failure of the next friend to purchase the Government promissory notes and to deposit the same in court. THE next friend of the minor failed to carry out his obligation. When the bond was sought to be enforced in execution, an objection was raised that it was a bond taken under O. XXXII, R. 6 and that , therefore, it could not be enforced in execution. THE objection was over-ruled by the court, holding that there was no disbursement of the amount to the next friend of the minor strictly in terms of O. XXXII, r. 6. It was further pointed out that until the money deposited by the judgment-debtor was finally disbursed to the rightful claimant there can be a proceeding in the suit within the meaning of C l. (c)of S. 145 of the Code of Civil Procedure and that, therefore, the security bond could be enforced in execution.