STATE OF GUJARAT Vs. INDRAVADAN HARILAL MODY

JUDGEMENT

(1.) The question which has cropped up in the present appeal is as regards the forfeiture of a bond executed by two sureties in Form 4 of Appendix F of Civil Manual Vol. II. The bond was executed by them as sureties for a Nazir in a District Court. The Nazir is alleged to have misappropriated golden ornaments worth about RS. 16 803 P. which were lying in the District and Sessions Court as muddamal articles in connection with some criminal cases. Shri L. P. Dave the then District & Sessions Judge of Ahmedabad passed an order on August 21/22 1957 in the following terms calling upon the sureties to tender the amount of RS. 5000.00 mentioned in the surety bond without affording them any hearing to show cause against the proposed order :

(2.) It appears that an argument was advanced before the learned trial Judge on the basis of the language employed in order Ex. 25 passed by Shri L.P. Dave the then District Judge whilst calling upon the sureties to tender the amount mentioned in the surety bond. In paragraph 2 it was stated that the surety bond had been forfeited and the amount had been ordered to be recovered and confiscated to Government. This was construed as an order of forfeiture. Reliance was placed on the stipula- tion contained in the surety bond which in so far as material is in the following terms :

(3.) The result of the aforesaid discussion is that order Ex. 25 passed by Shri L. P. Dave the then District & Sessions Judge of Ahmedabad in 1957 cannot be enforced having regard to the fact that it was passed without affording any opportunity to the sureties to show cause against the proposed recovery and the recovery proceedings could not be initiated till there was a valid determination made by the District Judge as regards the extent of the liability of the sureties. So far as order Ex. 18 passed by Shri D. P. Desai the then District Judge of Narol is concerned it has been passed after the death of the surety and without affording any hearing to the heirs of the surety. The determination made by him under the circumstances cannot be said to be a valid determination as regards the extent of the liability if any of the heirs of the deceased surety. The result is that no recovery proceedings can be initiated against the heirs of the deceased surety till there is a valid order (determining the liability in the context of the surety bond) passed by the District Judge after affording a reasonable opportunity to the heirs to show cause against the proposed action. Neither Ex. 25 nor Ex. 18 can be said to be an order recording a valid determination in regard to the liability of the heirs from the aforesaid point of view. The plaintiffs are therefore entitled to be protected. The decree passed by the trial Court must be sustained though on different grounds. It must be made clear that the respondents-plaintiffs are not exonerated from their liability if any in regard to the bond executed by deceased Harilal Ambaram Modi. How- ever the said amount cannot be recovered from them till a valid determin- ation is made by the learned District Judge after affording a reasonable opportunity to them to show cause. It will be open to the learned District Judge to initiate fresh proceedings and to pass an appropriate order in accordance with law after affording a reasonable opportunity to the respondents-plaintiffs. It will be open to the respondents- plaintiffs to raise all contentions excepting the one that there is no order of forfeiture passed by the Governor or the State Government. So far as that question is concerned it would be concluded by the present judgment. Apart from this all possible contentions as may be open under the law may be taken by the respondents-plaintiffs.