YARLAGADDA BAPANNA Vs. DEVATA CHINA YERAKAYYA

JUDGEMENT

(1.) The point involved in this appeal is whether the bond executed by the judgment-debtor as surety can he proceeded with in execution proceedings or a separate suit will have to be fifed to enforce the liability. The lower Court has relied on the observations in the Bench decision of this Court in Babulal v. Hyderabad Municipal Corporation 1900-2 Andh WR 510 at p. 514: (AIR 1961 Andh Pra 113 at p. 416) wherein it has been held "that if the decree-holder is trying to enforce the charge created, he could not do so under Section 115, Civil Procedure Code, and his only remedy would be by way of suit, but, if the decree-holder is not enforcing that charge but is trying to enforce the personal liability given by the surety, Section 145 would be applicable, and he would be entitled to execute the decree to that extent." It is to be noted that in the said decision no reference has been made to the Division Bench decision of the Madras High Court reported in Subramania Chettiar v. Raja of Ramnad, ILR 41 Madras 327 :(A1R 1918 Mad 442) wherein the learned Judges held that immoveable property given by a Judgment-debtor as security for the due performance of a decree, pursuant to an order made under Order XLI, Rule 5(3), Civil Procedure Code, can be realised in execution without attachment, the matter being one relating to execution within Section 47, Civil Procedure Code, and a separate suit does not lie. There is also a decision in Jagannath v. Ramachandra, AIR 1936 Mad 589 which follows the Division Bench decision in ILR 41 Mad 327: (AIR 1918 Mad 442). The view taken by a single Judge of the Madras High Court in Balakrishna Chettiar v. Krishnamurthi Aiyar, AIR 1927 Mad 416 is also opposed to the view taken by the Rench of this Court. Having regard to the importance of the question, it appears desirable to place this matter before a Bench for an authoritative pronouncement on this aspect. Let the matter be placed before the Honble the Chief Justice for necessary orders. Subramania Chettiar v. Raja of Ramnad, AIR 1918 Mad 442, ILR 41 Mad 327 ORDER 1. The point involved in this appeal is whether the bond executed by the judgment-debtor as surety can he proceeded with in execution proceedings or a separate suit will have to be fifed to enforce the liability. The lower Court has relied on the observations in the Bench decision of this Court in Babulal v. Hyderabad Municipal Corporation 1900-2 Andh WR 510 at p. 514: (AIR 1961 Andh Pra 113 at p. 416) wherein it has been held "that if the decree-holder is trying to enforce the charge created, he could not do so under Section 115, Civil Procedure Code, and his only remedy would be by way of suit, but, if the decree-holder is not enforcing that charge but is trying to enforce the personal liability given by the surety, Section 145 would be applicable, and he would be entitled to execute the decree to that extent." It is to be noted that in the said decision no reference has been made to the Division Bench decision of the Madras High Court reported in Subramania Chettiar v. Raja of Ramnad, ILR 41 Madras 327 :(A1R 1918 Mad 442) wherein the learned Judges held that immoveable property given by a Judgment-debtor as security for the due performance of a decree, pursuant to an order made under Order XLI, Rule 5(3), Civil Procedure Code, can be realised in execution without attachment, the matter being one relating to execution within Section 47, Civil Procedure Code, and a separate suit does not lie. There is also a decision in Jagannath v. Ramachandra, AIR 1936 Mad 589 which follows the Division Bench decision in ILR 41 Mad 327: (AIR 1918 Mad 442). The view taken by a single Judge of the Madras High Court in Balakrishna Chettiar v. Krishnamurthi Aiyar, AIR 1927 Mad 416 is also opposed to the view taken by the Rench of this Court. Having regard to the importance of the question, it appears desirable to place this matter before a Bench for an authoritative pronouncement on this aspect. Let the matter be placed before the Honble the Chief Justice for necessary orders. Subbarao v. Venkataraju, AIR 1964 Andh Pra 339, 1964 (1) Andh WR 374; Babulal v. Hyderabad Municipal Corporation, AIR 1961 Andh Pra 413, 1960-2 Andh WR 510; Jagannatha v. Ramachandra, AIR 1936 Mad 589, 1936 Mad WN 443; Balakrishna Chettiar v. Krishnamurthi Aiyar, AIR 1927 Mad 416, 52 Mad LJ 182; Subramania Chettiar v. Raja of Ramnad, AIR 1918 Mad 442, ILR 41 Mad 327 ORDER 1. The point involved in this appeal is whether the bond executed by the judgment-debtor as surety can he proceeded with in execution proceedings or a separate suit will have to be fifed to enforce the liability. The lower Court has relied on the observations in the Bench decision of this Court in Babulal v. Hyderabad Municipal Corporation 1900-2 Andh WR 510 at p. 514: (AIR 1961 Andh Pra 113 at p. 416) wherein it has been held "that if the decree-holder is trying to enforce the charge created, he could not do so under Section 115, Civil Procedure Code, and his only remedy would be by way of suit, but, if the decree-holder is not enforcing that charge but is trying to enforce the personal liability given by the surety, Section 145 would be applicable, and he would be entitled to execute the decree to that extent." It is to be noted that in the said decision no reference has been made to the Division Bench decision of the Madras High Court reported in Subramania Chettiar v. Raja of Ramnad, ILR 41 Madras 327 :(A1R 1918 Mad 442) wherein the learned Judges held that immoveable property given by a Judgment-debtor as security for the due performance of a decree, pursuant to an order made under Order XLI, Rule 5(3), Civil Procedure Code, can be realised in execution without attachment, the matter being one relating to execution within Section 47, Civil Procedure Code, and a separate suit does not lie. There is also a decision in Jagannath v. Ramachandra, AIR 1936 Mad 589 which follows the Division Bench decision in ILR 41 Mad 327: (AIR 1918 Mad 442). The view taken by a single Judge of the Madras High Court in Balakrishna Chettiar v. Krishnamurthi Aiyar, AIR 1927 Mad 416 is also opposed to the view taken by the Rench of this Court. Having regard to the importance of the question, it appears desirable to place this matter before a Bench for an authoritative pronouncement on this aspect. Let the matter be placed before the Honble the Chief Justice for necessary orders. JUDGMENT Chandra Reddy, C.J.

(2.) Although the security bond as such cannot be enforced under Section 145 C. P. C., which seems to apply to personal liability, Section 151 Civil Procedure Code comes to the rescue of the decree-holder who could request the court to enforce the bond in the exercise of its inherent Jurisdiction, when the bond is executed in favour of the Court. There is abundant authority for this position. See Subbarao v. Venkataraiu, 1964-1 Andh WR 374: (AIR 1964 Andh Pra 339). This position is not contested by the respondent.

(3.) This being the correct legal position, the decree-holder could have the bond enforced by virtue of Section 151 C.P.C. To that extent the order of the lower appellate Court is varied.