VYASRAO HANMANTRAO Vs. RAMCHANDRA HANMANT

JUDGEMENT

(1.) THIS second appeal arises out of darkhast proceedings. Five persons obtained a decree in 1928 for possession and mesne profits in the Court of the Joint Subordinate Judge of Bijapur against certain judgment-debtors. The judgment-debtors appealed to the District Court and applied for stay of execution Under Order XLI, Rule 5, of the Code of Civil Procedure. Stay was granted on the present respondent's standing surety for the due satisfaction of the decree by the judgment-debtors in case the decree was confirmed or varied by the appellate Court. The decree was confirmed on appeal. The decree-holders filed three darkhasts in 1930, 1932 and 1935 in none of which execution was sought against the surety. In the present darkhast filed in 1939 execution is sought against the legal representatives of defendant No, X and the surety respondent. The main question raised was whether the present darkhast was in time against the surety. The trial Court came to the conclusion that as no darkhast had been filed against the surety before, and as he could not be treated as a joint judgment-debtor along with the other defendants, as held in Narayan v. Timmaya (1906) I. L. R. 31 Bom. 50 : S. C. 8 Bom. L. R. 807, the present darkhast was not in time as against him. THIS view is opposed to the view taken by the High Courts of Madras, Lucknow, Allahabad and Lahore, a view which the learned Subordinate Judge thought to be more reasonable and equitable, but being bound by the Bombay decision in Narayan v. Timmaya he held in favour of the surety and dismissed the darkhast with costs as against him. The decree-holders appealed to the District Court, and the appeal was dismissed by the District Judge relying on Narayan v. Timmaya, which was followed in Yusuf Ali v. Papa Miya (1923) I. L. R. 47 Bom. 778 : S. C. 25 Bom. L. R. 810.

(2.) MR. Hungund on behalf of the appellant-decree-holders has relied on the provisions of Section 145 of the Code of Civil Procedure and Section 128 of the Indian Contract Act and contended that though the surety is not in the position of a joint judgment-debtor within the meaning of Explanation I to Article 182 of the first schedule to the Indian Limitation Act, the previous applications for execution save limitation as against the surety under Clause (5) of the said article, as held in Badr-ud-din v. Muhammad Hafiz (1922) I. L. R. 44 All. 743 and Gangaraju v. Subbayya (1934) I. L. R. 58 Mad. 276 and that Narayan v. Timmaya can be distinguished from the present case. Alternatively, he has argued that Article 182 does not apply, the obligation of the surety arising under Section 128 of the Indian Contract Act which can be enforced (in what manner he has not exactly specified) under the provisions of Section 145 of the Civil Procedure Code. MR. Murdeshwar on behalf of the respondent surety relies on Narayan v. Timmaya and certain decisions of the Rangoon, Patna and Calcutta High Courts which have followed that case and contends that that authority is binding for the decision on the point under consideration. He has further contended that the scope of Article 182(5) of the Indian Limitation Act is not wider than that of Explanation I thereto and that if the said Explanation does not cover the case of a surety, the surety is not also1 governed by Clause (5) of Article 182. 'The second paragraph of Explanation I to that article reads thus: Where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject-matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against. But, where the decree or order has been passed jointly against more persons than one, the application, if made, against any one or more of them or against his or their representatives, shall take effect against them all.

(3.) MR. Murdeshwar has also relied on Raja Raghunandan Prasad Singh v. Raja Kirtyanand Singh Bahadur (1932) 36 C. W. N. 701 : S. C. 35 Bom. L. R. 526 P. C and Birendra Chandra v. Tulsi Charon [1926] A. I. R. Cal. 267. The case in Raja Raghunandan Singh v. Raja Kirtyanand Singh Bahadur did not raise the precise point now under consideration, and the application made to enforce the surety's bond was held by their Lordships to be within time on a proper construction of the bond itself, so that it was unnecessary to have recourse to Article 182. In Birendra Chandra v. Tutsi Charan it was held that where the sureties had made themselves liable only for a part of the decretal amount and the execution was taken only against them, the sureties not being co-judgment-debtors with the principal debtors, the execution against them did not save limitation against the principal debtors. That decision followed Kusaji v. Vinayak (1898) I. L. R. 23 Bom. 478, and Narayan v. Timmaya was also mentioned therein with approval.