NARAHARIAPPA Vs. MOHAMED MOULANA

JUDGEMENT

(1.) The respondent stood surety in the suit proceedings for the defendant when an order under O XXXVIII, R. 5, Civil Procedure Code, was made by the Court. He executed a surety bond, creating charge on a plot of land of the value of Rs. 4,000. The undertaking given was to the effect that in case the suit is decreed, he would pay the suit amount of Rs. 3,309 together with the costs of the suit. Further if it be found that the property hypothecated is insufficient to meet the decretal amount, his person and other property would be liable for the balance. This document was executed on 13/09/1957. It was accepted by the Court. After enquiry, the suit was dismissed by the trial Court. On appeal, the case was remanded. This time, the suit was decreed. After the dismissal of the suit in the first instance the surety was not called upon to execute any further bond. After the decree, nevertheless the decree-holder sought to enforce the liability under the original security bond against the surety by the attachment of the hypothecate. The surety this time raised two grounds: firstly that his security bond ceased to have its effect as soon as the suit was dismissed; and, secondly, since it was not registered, it cannot be acted upon, nor can it be used in evidence for determining his liability. Both these pleas found favour with the Courts below.

(2.) The first contention was repelled on the basis of the dictum in Seethai Ammal v. Narayana Ayyangar, AIR 1928 Mad 976 1928 Mad WN 710, Balaraju Chettiar v. Masilammani Pillai, AIR 1930 Mad 514 and Gangappa v. Boregowda, (S) AIR 1955 Mys 91 (FB). The Mysore ruling which is said to be on all fours with the facts of the present case was in fact made the basis of the finding against the decree-holder. On the second point, of course, there seems to be some conflict of opinion. But since the Madras rulings were in favour of the view in support of the surety, both the Courts accepted the contention of the surety and held that the security bond cannot be acted upon, as it required registration.

(3.) What is contended for on behalf of the learned counsel for the appellant in this appeal before me is that the principle enunciated by the Privy Council in Hemanta Kumari Debt v. Midnapur Zamindari Co., 46 Ind App 240: (AIR 1919 PC 79), Bindesri Naik v. Ganga Saran Sahtu, (1898) 25 Ind App 9 (PC) and Pranal Anne v. Lakshmi Annee, (1899) 26 Ind App 101 (PC) was not before the learned Judges of the Madras High Court when they decided N. Sambayya v. T. Subbayya, (1908) 31 Mad 330. He there relied on the Full Bench decision of the Lahore High Court in Kasturi Lal v. Goverdhan Dass. AIR 1934 Lah 138 (FB) & also on Jayappa Lokappa v. Shivangouda Dyamangouda, AIR 1928 Bom 42 for the proposition that the documents of this kind, i.e., security bonds, are not in sooth executed between the decree-holder and the surety but only between the surety and the court, and are therefore, steps in judicial proceedings and as such they fall within the purview of the general principle laid down by the Privy Council in (1898) 25 Ind App 9 (PC) that they are proceedings of Court, and as such do not require registration.