JAFAR ALI Vs. RAMLOO AND ANOTHER

JUDGEMENT

(1.) This civil miscellaneous appeal has been referred to a Bench by Basi Reddi, J., in view of conflict of Judicial opinion. The question is whether a security bond executed out of court by the father of the judgment-debtor during the execution of a decree against the judgment-debtor can be enforced by recourse to summary proceedings under Section 145 of the Code of Civil Procedure .

(2.) It may be stated that the decree-holder had obtained a decree in Original Suit No. 272 of 1950 on the file of the 1st Additional Judge, City Civil Court, and tried to attach a house alleged to belong to the judgment-debtor. But the father of the judgment-debtor filed claim petitions on two occasions when the decree-holder was executing his decree against the judgment-debtor, and thus successfully prevented the execution of the decree. It is the decree-holder's contention that when he wanted to file another E. P. for arrest of the judgment-debtor, Jafar Ali, the father of the judgment-debtor, being apprehensive of the arrest of his son in the execution proceedings, promised to pay the decretal amount after his house is sold; but on the decree-holder insisting on the father executing a surety bond in his favour, the father executed such a security bond in favour of the Additional City Civil Judge, in the house of one Abdul Rashid, an Advocate, for satisfying the decree in O. Section 272/1950. As the father has failed to pay the decretal amount within the stipulated period, E. P. No. 70 of 1950 was filed, adding the father as judgment-debtor No. 2, with a prayer that the same be executed against him. The 2nd judgment-debtor contended that he has neither signed nor filed any surety bond, that he is the owner and is in possession of house bearing No. 20-3-416 situated at Baragalli, Hyderabad, that the security bond was not executed in compliance with any order of the Court nor was it recorded by the Court in accordance with the Civil Procedure Code and is therefore not enforceable against him. He further stated that the judgment-debtor neither resides in that house nor has he any goods therein. The executing Court held that, though the bond in question was not executed at the instance of the principal debtor, the same can be enforced against the surety in the execution proceedings, and that it would be a sheer injustice if the decree-holder is directed to bring a separate suit against the surety to enforce the bond in question. The objection was therefore overruled and attachment of the property prayed for was effected. Against this order, the Civil Miscellaneous Appeal has been filed.

(3.) Sri Harihar Rao, the learned advocate for the 2nd judgment-debtor, the appellant herein, frankly admitted at the outset that he is not going to contest the finding that the 2nd judgment-debtor, viz., the father, had executed the security bond. It was however contended that the security bond amounts to a contract of indemnity under Section 124 of the Indian Contract Act, and that it is not a bond executed in the presence of a Court or pursuant to orders of Court in order to avail himself of the summary procedure under Section 145 of the Code of Civil Procedure . It is not denied that there was no E. P. pending at the time the bond was executed, nor was there any order of the Court directing execution of the indemnity bond was filed only with the execution petition against the 2nd judgment-debtor for enforcing his liability.