PENA BABULAL Vs. HYDERABAD MUNICIPAL CORPORATION

JUDGEMENT

(1.) Appeal 53/2 of 1956 is on behalf of the judgment-debtor. It arises out of execution proceedings started by the respondent herein. It appears that the appellant stood surety and executed two surety bonds, one in the mouth of August 1952 and the second on 7/10/1952 and as default was made, the respondent tried to execute the decree. In the E. P. filed, the respondent prayed that the surety be directed to deposit the amount and in case of default, House D-A-66, at Bir Bhan Bagh, Shah Inayath Gunj, Hyderabad may be attached and auctioned and the said amount may be awarded. The appellant resisted this petition. Though no counter was filed on his behalf, 011 10-10-1955, his learned counsel stated before court that his only objection was that as immoveable property was mortgaged and no personal liability was undertaken under the surely bonds, the decree-holder could not proceed against the hypothecated property in execution proceedings and he had to file a fresh suit. The executing court repelled the contention of the judgment-debtor and held that under Section 145 C. P. C. the decree-holder was entitled to proceed against the property. Holding so, the lower court directed the issue of warrant of attachment of the property specified in the E. P. It is this order of the executing court that is now challenged in this appeal.

(2.) Sri Abdul Wahid Ovesi, learned counsel for the appellant contended that in the first bond of August, 1952, there is only personal liability and this bond not having been accepted by the Court and there being no personal liability in the second bond of 7/10/1952, the decree-holder was not competent to proceed under Section 145 C. P. C. and his only action was against the property mortgaged and that too by way of suit. He next contended that even if it is held that by the second bond the appellant had undertaken the personal liability that would only entitle the decree-holder to execute the decree by detention of the judgment-debtor in civil prison and not by way of attachment of the property.

(3.) In order to appreciate the contention of the learned counsel a reference first to the surety bonds is necessary. The surety bond of August 1952 is worded thus;