SHAH MULCHAND MOHANLAL Vs. SHAH DAMODARDAS AMTHACHAND

JUDGEMENT

(1.) This is an appeal from the order of the District Judge Mehsana dismissing the objections of the appellant that the proceeding in execution of the decree obtained by respondents Nos. 1 to 6 against him should be discontinued.

(2.) Briefly stated the facts are that Regular Civil Suit No. 63 of 1950 was filed by respondents Nos. 1 to 6 against respondent No. 7 who died pending the proceedings and respondents Nos. 7/1 and 7/2 are his heirs who were brought on record for recovering the amount of Rs. 5000/due in respect of certain business transactions. In that suit respondents Nos. 1 to 6 original plaintiffs applied for attachment before the judgment on January 27 1951 under Order 38 Rule 5 of the Code of Civil Procedure. On that application an order was passed by the Civil Judge Junior Division Chanasma on January 29 1951 directing the defendant i.e. deceased respondent No. 7 to furnish security in the sum of Rs. 6000/in default the properties shown in the list accompanying the application were directed to be attached till further order. On January 30 1951 the defendant appeared in the Court and gave an application and prayed that the attachment may not be levied as he was ready to furnish security. On that application an order was passed on the same day. The Court passed an order directing that if the defendant furnished security attachment should not be levied. Shah Mulchand Mohanlal the present appellant stood surety for the defendant for the sum of Rs. 6000/and executed a surety bond on January 30 1951 Thereafter deceased defendant No. 4 filed his reply to the plaintiffs application for attachment before judgment on March 27 1951 It appears that neither the plaintiffs nor the said defendant moved the Court for hearing of the application for attachment before judgment and passing final orders on that application. Ultimately on July 25 1961 a decree for Rs. 3989.41 P. with running interest at the rate of 6 per cent per annum from the date of the suit till realisation and proportionate cost of the suit was passed in favour of the plaintiffs and against the said defendant. An Appeal No. 59 of 1953 in the District Court was filed and the appeal was allowed dismissing the suit of the plaintiffs. Second appeal was preferred in the High Court. The judgment and decree passed by the District Court were set aside and the suit was remanded to the trial Court. The trial Court thereafter decreed the suit. Appeals against the said judgments and decrees were filed but without success. Thereafter the plaintiffs got the decree transferred to the Court of the Civil Judge Senior Division Mehsana and then filed Regular Darkhast No. 71 of 1961 on November 23 1961 for realising Rs. 6000/out of the amount due under the decree by attachment and sale of the property of surety Mulchand Mohanlal i.e. the appellant.

(3.) The appellant appeared in the said proceeding and filed his objections. He resisted the Darkhast application. It was contended by him that the surety bond was executed in favour of the Court and the Darkhast was not maintainable without the order of the Court. It was further contended that the plaintiffs suit was dismissed and so automatically the surety bond executed by him came to an end and the surety bond was not revived by the subsequent restoration of the suit. The execution of the decree was also objected on the ground that the an order of attachment before judgment was passed exparte and as it was not an order under Order 38 Rule 5 sub clause (3) of the Civil Procedure Code and as the application was not decided on the merits after hearing both the parties the surety bond executed by him could not be enforced against him. An application Ex. 17 was also given on behalf of the surety contending that he was discharged from the liability as the decree holders had discharged the principle debtor by not claiming Rs. 6000/and costs from him in the execution petition. The learned trial Judge rejected the objections raised by the surety and directed the proceedings to proceed further against him. Being aggrieved by the said judgment and order the surety filed Regular Civil Appeal No. 128 of 1962 in the Court of the District Judge Mehsana. The learned appellate Judge dismissed the appeal. It is against this judgment and order that this second appeal is filed. .. ...