JANAKIAMMAL Vs. A T KRISHNASWAMI MUDALIAR

JUDGEMENT

(1.) This revision petition is preferred by the seventh respondent in E. P. No. 134 of 1957 in O. S. No. 226 of 1946, on the file of the Second Additional Subordinate Judge, Coimbatore. That petition was filed by the defendants in O. S. No. 226 of 1946 under the following circumstances. O. S. No. 226 of 1946 was laid against the defendants by the two persons for recovery of a sum of more than one lakh of rupees. They got a decree in the first Court not for the full sum claimed, but, for a part of it. Against the decree, an appeal was preferred to this Court, being A. S. No. 713 of 1947. That appeal was preferred by the judgment-debtors defendants objecting to the decree passed by the Subordinate Judge of Coimbatore. The plaintiffs in the lower court also preferred an appeal to this Court objecting to the disallowance of a portion of the claim. Pending the appeal, an order for stay was obtained in this Court on condition that the amount of the decree should be deposited in the trial court, and the decree-holders should take it out on giving security. The decree amount was accordingly deposited in the trial court, and security was given in the shape of a bond by two persons, husband and wife, one of whose legal representatives is the present petitioner. That bond was in form No. 3, Appendix G first schedule of the Civil Procedure Code.

(2.) The appeal to the High Court preferred by the defendants succeeded, while the other appeal failed, with the result, the decree-holders, who had withdrawn the amount deposited in the first Court, had to redeposit the amount with interest. They failed to do so. An execution petition by way of restitution was filed by the defendants, and arrest of one of the plaintiffs was prayed for. He was not available, and the execution petition was dismissed.

(3.) Subsequently, the present execution application was filed for bringing to sale the properties hypothecated under the security bond given to Court. Two objections were raised to execution. The first was that the bond did not contain personal liability, and could not be enforced under S. 145 or 151 of the Civil Procedure Code. The second objection was that without exhausting the remedies open against the principals the security bond could not be enforced. Both the objections were overruled by the Subordinate Judge and execution was ordered. That order is questioned in this revision petition.