SAITHU MUHAMMAD ISMAIL Vs. ABDUR REHMAN

JUDGEMENT

(1.) This second appeal is by a surety in execution.

(2.) The appellant was entrusted by the court with a lorry, pending an enquiry into a claim petition regarding its possession. On the claim petition being rejected, the appellant failed to produce the lorry and so became liable to pay the decree amount in pursuance to his undertaking in the surety bond he had executed to the court in the first instance. On the decree holder seeking to execute the decree against the appellant, he applied to the court for instalment concessions under Act III of 1956. The courts below have rejected this application on the ground that the appellants liability arose out of a breach of trust within the meaning of S.2(b) iii of the Act. Hence this appeal.

(3.) Learned counsel for the appellant says that the appellants liability was only in some way connected with and did not arise out of any trust obligation and the sub-section could not apply. And he relied on the decision reported in AIR 1942 Mad. 202 . But that case was concerned with a surety for a trustee and the learned Judges said that the suretys obligation being only purely contractual, could not be said to have arisen out of the principal debtors trust liability. Here surely the matter is different. The appellant has directly undertaken the liability to return the vehicle. So there was a fiduciary obligation so far as he himself was concerned and it is hardly possible to say, that his present liability did not arise out of that fiduciary obligation. And there is the direct authority of 1946 TLR 592 to say that the word trust in the context, does not mean the strict liability of a trustee. The word it is said, is used only in the popular sense. So whenever confidence is reposed in a person and that person betrays the same, the obligation which arises in consequence will be assimilated to those under the clause in question. In that case the liability was that a bailee who had failed to fulfil his obligations to return the goods bailed and the bailor was not allowed to escape the payment in full. This case is almost on a par with the case in 1947 TLR 102 and it seems to me that the same principle as was applied there, must apply here also.