SUBASWAMY Vs. PARAMESWARAN

JUDGEMENT

(1.) This revision petition is against the order made by the executing court on 5-11-1985 in EP No. 436/84 in OS No. 463/82. The relevant facts necessary for the disposal of this case may briefly be stated as follows. Respondents 1 and 2 instituted the suit against respondent No. 3 for a money decree During the pendency of the suit respondents 1 and 2 made an application under O.38 rule I of the CPC for the issue of a warrant of arrest of respondent No. 3 and to bring him before court to show cause why be should not furnish security for his appearance. In pursuance of the notice issued under O.38 R.1 of the Code of Civil Procedure respondent No. 3 appeared and furnished the petitioners as sureties. The petitioners executed a bond as required by O.38 rule I of the CPC binding themselves in default of appearance of the third respondent to pay up to a sum of Rs. 6337.52. The suit was ultimately decreed in favour of respondents 1 and 2 and they made an application to recover the decretal amount from the petitioners by enforcing the bond executed by them. The petitioners resisted the application contending that no decree having been passed against them, they are not liable to satisfy the decree to the extent of the amount stipulated in the bond, the third respondent, the judgment debtor not having made any default in appearing before court either during the trial of the suit or during the execution proceedings. The executing court overruled the objections of the petitioners and directed that the petitioners be impleaded in the execution petition and further steps be taken to enforce the decree against them on the basis of the bond executed by them. It is the said decision that is challenged in this revision petition.

(2.) Sri. Nandakumara Menon, learned counsel for the petitioners submitted that the court below committed an error in taking the view that respondents 1 and 2, the decree holders can enforce the bond executed by the petitioners for satisfying the decree obtained by them as if the petitioners are sureties who have undertaken to satisfy the decree. It was submitted that by executing the bond they have undertaken to ensure the presence of respondent No. 3 and as long as respondent No. 3 does not commit any default in appearing before the court, respondents 1 and 2 cannot enforce the bonds executed by the petitioners. The learned counsel appearing for the respondents, on the other hand, contended that the bond has been executed not only for the purpose of ensuring the presence of respondent No. 3 but also for the purpose of satisfying the decree to the extent of the amount stipulated in the bond and that therefore they are entitled to enforce the bond for satisfying the decree, notwithstanding the fact that the third respondent has not committed any default in appearing before the court. Learned counsel for respondents 1 and 2 relied upon the decision of the Rajasthan High Court reported in AIR 1960 Rajasthan 319 between Hazarilal and another v. Chhaju Ram and Others. That was a case in which a surety was executed for due performance of the decree, which the court held, is enforcible having regard to S.145 of the Code of Civil Procedure. But this is a case of enforcement of a bond executed under O.38 R.2 of the Code of Civil Procedure. Hence the decision of the Rajasthan High Court is of no assistance in deciding the issue that has arisen for consideration in this case.

(3.) It is not disputed that the bonds were executed by the petitioners in proceedings that were initiated by respondents I and 2 under O.38 R.1 of the Code of Civil Procedure. O.38 R.1 of the CPC reads: