CHEEKEN PAILY Vs. ABDUR RAHIMAN

JUDGEMENT

(1.) This second appeal is by the surety for the 3rd defendant and is directed against an appellate order of the lower court confirming an order of the executing court which repelled his contentions that the surety bond executed by him had become unenforceable.

(2.) The decree of the Trial Court had provided for recovery of property with rent past and future against the 3rd defendant and others. Pending his appeal before the District Court, the 3rd defendant applied for and obtained stay of execution on condition that he furnished security for a sum of Rs. 400. The appellant accordingly stood surety and executed bond on 29-2-1125. The bond was accepted on the same day by the executing court and further execution was stayed. Subsequently on 23-3-1125 the plaintiff respondent filed review petition before the District Court praying for modification of the stay order on ground that the decree amount had really come up to Rs. 600 and there was also future rent recoverable. After hearing the parties the court passed fresh order on 3-4-1125 directing the 3rd defendant to give security for Rs. 200/- more within two weeks failing which the stay granted will stand cancelled. The 3rd defendant did not furnish the additional security and it happened also that the decree holder did not take out execution. The appeal by the 3rd defendant was allowed by the District Court but the plaintiff won in the second appeal before the High Court. The plaintiff thereafter sought execution against the appellant on foot of the security bond to the extent of Rs. 400. The appellant objected but as observed above his contention was overruled by the courts below and hence this second appeal.

(3.) Mr. A.S. Krishna Iyer, learned counsel for the appellant, raised before me the same contention as was pressed unsuccessfully before the courts below, viz., that by the operation of the order dated 3-4-1125 the security bond executed by the appellant had ceased to be enforceable. In rejecting this contention the executing court observed that the non furnishing of the additional security and the cancellation of the stay order did not alter the liability of the surety to any extent but why that was so was not explained. The learned District Judge in appeal relied upon two grounds, viz., that the order for stay had been operative from the date of the inception of the bond until the stay stood cancelled and it could not therefore be said that there was no consideration for the bond or that the stay was not granted. Further that on the terms of the bond there was no condition attached that the stay should be operative till the appeal was disposed of. In my judgment, however, both these grounds are untenable and the contention raised by the surety should have been upheld.