FOOL CHAND Vs. PRATAP SINGH

JUDGEMENT

(1.) THE facts of this appeal are that in execution of a decree held by the Respondent Pratap Singh against Bag Mal, Raj Mal and Phool Mal, the judgment -debtor Phool Mal was arrested on 13 -5 -46. He was released on 14 -5 -46 when the Appellant Phool Mal executed a bond promising to produce the judgment -debtor on 30 -5 -46 or to pay the decretal amount in default. On 30 -5 -46, the judgment -debtor Phool Mal raised various objections to the execution petition and to his arrest. On this very date the Appellant Phool Chand again executed a fresh bond promising to produce the judgment -debtor at any time till and also after his objections to the execution petition were disposed of. On the dismissal of the objections he further promised to produce the judgment -debtor at any time on a notice being given to him to that effect and failing he promised to pay the decretal amount. The judgment -debtor's objections were disposed of by the district Judge of Gwalior on 30 -9 -48. The earned District Judge holding that the arrest of the judgment -debtor was illegal, dismissed the (sic)lecution petition and discharged the Appellant (sic) stood surety for the appearance of the judgment -debtor. The decree -holder then appealed to this Court from the said order of the District Judge. In the appeal (Civil Misc. Appeal No. 16 of 2005) a Division Bench of this Court held that the arrest of Phool Mal was proper and that he was "wrongly released from prison". In the appeal this Court directed the executing Court to proceed according to law in the light of the observations made in that appeal. When the matter went back to the lower Court, the Appellant was served with a notice on 30 -3 -51 to produce the judgment - debtor on 2nd April 1951. The Appellant failed to produce the judgment -debtor on this date, and contended that his liability ended with the dismissal of the execution petition by the lower Court on 30 -9 -48; that he was not bound by any proceedings taken thereafter in this Court by the decree -holder; and that it was not possible for him to produce the judgment -debtor in the Court on a short notice of two days. The lower Court rejecting these objections directed the Appellant to deposit in the Court on or before 15 -5 -1951 the decretal amount. It is against this order that the present appeal has been filed.

(2.) MR . Bhagwandas Gupta learned Counsel for the Appellant firstly contends that as the Appellant was not made a party in the appeal Civil Misc. No. 16 of 2005 preferred by the decree -holder, he is not bound by the decision in that appeal holding the arrest of the judgment -debtor proper and directing the execution proceedings to be continued. This objection is, in my opinion, without any substance. The liability of the Appellant as a surety in this case arises quite independently of the decree which is sought to be executed. He is not a party to the execution proceedings of the decree. He has, therefore, no 'locus standi' to object to the execution of the decree or the validity of the arrest of the judgment -debtor for whom he stood surety. The bond that was required from the Appellant for the appearance of the judgment -debtor was irrespective of the fact whether the arrest of the judgment -debtor was or was not proper. The Appellant having executed the surety bond in the form he had done, could not raise the objection that the arrest of the judgment -debtor was not legal or that the execution of the decree by the arrest of the judgment -debtor was not legal. That being so, the liability of the Appellant to produce the judgment -debtor is in no way affected by the fact that in the appeal in which this Court held that the arrest of the judgment - debtor was proper, the Appellant was not made a party.

(3.) IT is clear from these terms of the bond that they in no way limit the operation of the bond to the order which the lower Court would make on the objections of the judgment -debtor. By the bond, the Appellant gave an undertaking in general terms that on the rejection of the objections of the judgment -debtor and on the order being passed for his arrest he would produce the judgment -debtor in the Court and in the event of his failing to produce the judgment -debtor, he would pay the decretal amount. There is nothing to show in the bond that the surety would not be liable under it if the judgment -debtor's objections are rejected by the Court of appeal and if an order is ultimately made by that Court for the arrest of the judgment -debtor. It was, no doubt, open to the surety to limit his liability by using proper language to that effect. But when he has not used such language, it is fair to hold that the Appellant stood surety for the appearance of the judgment -debtor, whether the lower Court in requiring the Appellant to produce the judgment -debtor was acting on its own decision or was acting in pursuance of an order made by this. Court. On the terms of the bond, it makes ho difference to the liability of the surety whether the objections of the judgment -debtor were dismissed and his arrest was ordered consequently by the lower Court or by this Court in appeal. That in a case such as this, the liability of the surety must be determined on the terms of the bond passed by him is supported by the decision of the Bombay High Court in - 'I.S. Patil v. Irbasappa 51 Bom. 31 and of the Privy Council in - 'Raghubar Singh v. Jai Indra Bahadur Singh, 46 Ind App 228 (PC). On the reading of the bond in the present case it is clear to me that it has reference to the ultimate issue of the objections of the judgment -debtor. As the judgment -debtor's objections were ultimately rejected by this Court and his arrest was ordered, the Appellant is liable under the bond to produce the judgment -debtor in the lower Court.