KAMBHAM RAMAMURTHY Vs. SAGIRAJU TIRUPATIRAJU

JUDGEMENT

(1.) THIS is an appeal under clause 15 of the Letters Patent from the judgment of Happell, J., allowing an appeal filed against the order of the learned Subordinate Judge of Coconada who reversed the order of the District Munsiff of Peddapuram on an application filed by the respondent to enforce a security bond executed by the appellant. The respondent, when he was a minor represented by his maternal grandfather, obtained a decree in O.S. No. 351 of 1927 on the file of the Court of District Munsiff of Peddapuram for a sum of Rs. 1,020. The maternal grandfather as next friend was allowed to draw out the money under Order 32, Rule 6, Civil Procedure Code, on the execution of a security bond by the appellant. By that bond, the appellant undertook to pay any amount that may be found to be payable to the plaintiff if within 3 years of his attaining majority he raised any dispute and churned to recover any money from his guardian in respect of the decree amount. Unfortunately, this bond which was accepted by the District Munsiff, Peddapuram, was not executed in favour of the District Munsiff as it ought to have been. Actually the bond does not purport to be in favour of any person. The difficulty in this case has arisen purely on account of this circumstance.

(2.) THE respondent became a major on the 10th January, 1941, and on the 8th August, 1941, he instituted a suit, O.S. No. 175 of 1941 against his erstwhile guardian, his maternal grandfather, for rendition of account and for recovery of the amount which may be found payable to him on the taking of the account. The guardian died pending the suit and the grandmother was brought on record as his legal representative. On the 23rd December, 1941, an ex parte decree was passed in favour of the respondent against the assets of the deceased grandfather in the hands of the grandmother. Thereafter, on the 23rd March, 1942, the appellant filed an execution application in O.S. No. 351 of 1927 to recover the amount mentioned in the security bond. This petition, however, was dismissed on the 14th June, 1943, owing to a technical defect in the decree. Subsequently, there was an amendment of the decree and again, on the 9th December, 1943, the appellant filed another application for execution in O.S. No. 351 of 1927, E.P. No. 40 of 1944 out of which the present appeal arises.

(3.) THE second point can be disposed of easily. In our opinion, it is clear that Section 48, Civil Procedure Code has no application whatever to the present case. In no sense can the application of the respondent be said to be an application for the execution of the decree in O.S. No. 351 of 1927. That decree had been satisfied long ago. What the respondent is now seeking to enforce is not the liability of the judgment -debtor in that suit. Whether the application can be said to be barred by reason of any other provision in the Indian Limitation Act will be dealt with later on after deciding the other question, namely, the procedure to be adopted in cases where a security bond like the present has not been executed in favour of the presiding officer of the Court. If the security bond had been so executed in favour of an officer of Court, then the obvious procedure for the respondent was to obtain an assignment of the bond and to file a suit on it. This procedure, of course, should be understood to refer to security bonds like the present which are executed under Order 32, Rule 6, Civil Procedure Code or executed in circumstances which will not fall within the scope of Section 145 of the Civil Procedure Code. It was not contended before us, and rightly, that Section 145 applies to the enforcement of a bond like that in the present case.