PANNAJI DEVICHAND Vs. BASAPPA VIRAPPA BELLARY

JUDGEMENT

(1.) THIS is an appeal arising in execution of a money decree. The original suit, No.16 of 1927, was brought by the shop of Kapurji Magniram against the present appellants to recover a certain amount. The suit was decreed in the plaintiff's favour and the present appellants filed an appeal to the High Court which was First Appeal No.136 of 1929. this Court confirmed the decree of the trial Court, and the appellants then applied for leave to appeal to the Privy Council. The leave was granted and the appellants succeeded in their appeal. The decree of the High Court was reversed and the suit was dismissed with costs throughout. During the pendency of the First Appeal in this Court, the plaintiff had filed Darkhast No.30 of 1929 for executing the decree of the trial Court and had also recovered the decretal amount from the appellants. The appellants had applied to this Court for stay of execution, but the plaintiff was willing to furnish security, and it was therefore directed under Order XLI, Rule 6, of the Civil Procedure Code, 1908, that the plaintiff might be allowed to execute the decree on furnishing security to the satisfaction of the) trial Court. He accordingly furnished two sureties who are opponents Nos. 2 and 3 and the respondents in the present appeal. By virtue of the decision of the Privy Council the appellants became entitled in restitution to recover the amount which they had paid to the respondent-plaintiff, and they, therefore, applied to this Court under Order XLV, Rule 15, for transmission of the Privy Council decree for execution to the trial Court. That application being granted, the appellants filed the present darkhast No.23 of 1937 to recover the amount with interest and costs from the original plaintiff as well as from the two sureties, opponents Nos. 2 and3. They also filed a separate application against the sureties to enforce the surety bond. The contention of the sureties was that they were not liable on the terms of the bond because their liability was restricted only to their fulfilling the obligations arising under any decree passed by the appellate Court, viz. the High Court, and that the liability which the appellants were seeking to impose upon them arose not under the decree of the High Court but under the decision of the Privy Council for which they had not bound themselves in the surety bond. The material terms of the surety bond are as follows : Defendants Nos. 1, 2 and 3 have filed in the High Court Appeal (Stamp) No.1168 of 1929 to have the decree in suit No.16 of 1927 set aside, and if in the said appeal the decision goes against the plaintiff, then he will pay into Court the entire amount that may be payable to defendants Nos. 1, 2 and 3 and take a receipt, but if he fails to act according to the terms of the; said decree, the entire amount should be recovered by the sale of the properties mentioned below which are hereby mortgaged and if the proceeds of the sale of the said properties are insufficient to pay the amount due, we severally and our legal representatives will be personally liable to pay the balance up to Rs. 40,000. To this effect, we execute this security bond.

(2.) THE learned Judge below has accepted the contention of the sureties and held that the liability of the sureties was limited to the obligation of acting according to the decree passed by the High Court in the First Appeal, and that it could not be extended to an obligation arising from a further appellate decree setting aside the decree of the High Court. After referring to several decisions, the learned Judge held on the construction of the bond that the sureties did not agree to be bound by the decision of the final appellate Court but only by the decree in the appeal which was pending in the High Court. As a result it was directed that the darkhast should proceed against opponent No.1, i.e. the original plaintiff, alone, and it was dismissed against opponents Nos. 2 and3.

(3.) THE decision in Irangouda Shidramgouda v. Irbasappa (1926) I.L.R. 51 Bom. 31 : s.c. 28 Bom. L.R. 1516 relied on by the appellants could also be distinguished on the same ground. THE defendant there had to produce certain moveables and the surety had passed a bond guaranteeing the defendant's undertaking to produce them. After the decision of the appeal the moveables were to be produced before the very Court to which the bond was passed, even though the production of the moveables was in pursuance of the order made by the appellate Court. THE decision in Raghubar Singh's case was rightly applied in that case, and it was held that the surety had to comply with the order of the same Court to which the bond was passed just as in the Privy Council case the sureties had to comply with the final order of the Judicial Commissioner's Court to which the bond was passed. THE decision was based on the construction of the particular bond, and it was observed that the surety cannot escape liability in absence of any clear indication in the bond that only the Court to which the bond was passed was meant and not the Court of appeal.