K P AMBADY Vs. K M BALAN

JUDGEMENT

(1.) The matter arises in execution of the decree, in connection with the enforcement against the revision petitioners, of a security bond executed by them.

(2.) The suit was one for money. Pending suit the plaintiff respondent applied for and obtained attachment before judgment of certain movables belonging to the defendant - 2nd petitioner. Immediately thereafter, the movables were handed over to the defendant himself for safe custody under security bond dated 28-1-1956, executed by him and two others, of whom the 1st petitioner was one. The suit was decreed on 7-2-1957. Subsequently, on notice issued to produce the articles for purposes of sale in execution, the 1st defendant defaulted. The plaintiff then moved for enforcement of the security bond as against the petitioners by issue of warrant of arrest. The petitioners pleaded non liability on various grounds but the plea was rejected. Hence this revision,

(3.) We are concerned with only two of the objections raised by the petitioners. Firstly, that the goods were lost on account of theft and they were in consequence exempt from liability. Secondly they had no means to pay and were therefore not liable to arrest. Taking up the first ground, learned counsel Mr. Sundara Iyer for the petitioners urges that the defendant must be taken to be a bailee within the meaning of S.151 of the Indian Contract Act and if so, he could be made liable only if he failed to exercise the ordinary prudence of an owner. Learned counsel complains that the court below had altogether omitted to consider the matter and the question may therefore be remitted for consideration by that court. Now the condition of the bond executed by the defendant was that he should produce the articles whenever and wherever and to whomsoever ordered by the court and that in default of production of the said movables the defendant and his sureties will jointly and severally be liable to pay to the court, an amount of Rs.1,329-6-0, that is, thrice the amount as shown in the attachment list. S.151 of the Contract Act says: