AMIR Vs. SAIDANBAI

JUDGEMENT

(1.) The facts of this second appeal arising out of execution proceedings of a decree are that on 14th February, 1953 the respondent Saidanbai obtained a decree from the court of the civil judge, second class, Khargone, for recovery of Rs. 2100/- from the assets of one deceased Babu in the hands of the respondents Rahimbai and Chandibai. That decree was affirmed in appeal on 28th July 1954 by the additional civil judge, first class, Khargone. A second appeal was then preferred in the Madhya Bharat High Court by Rahimbai and Chandibai. That appeal was dismissed on 5th January, 1956. The decree passed in the second appeal declared Rahimbai and Chandibai liable for Rs. 2625-10-0 besides costs and directed that this amount shall be recoverable out of the entire assets of the deceased Babu in the hands of Rahimbai and Chandibai. During the pendency of the second appeal in the Madhya Bharat High Court, a stay of the execution of the decree of the lower court was granted on the appellants in that appeal viz. Chandibai and Rahimbai furnishing solvent security to the satisfaction of the lower court for due performance of such decree or order as may ultimately be made in the appeal. The appellant Amir furnished the requisite security and the execution of the decree in question was stayed. The bond executed by Amir stated that Rahimbai and Chandibai will obey the order that might be passed in the second appeal preferred in the Madhya Bharat High Court and that if they did not "act" according to the order of the High Court, then he would personally pay Rs. 2436-15-0 plus costs to Saidanbai. The undertaking in the bond ran as follows : ..(VERNACULAR MATTER OMMITED)..

(2.) After the dismissal of appeal by the High Court, the decree-holder Saidanbai applied for execution of the decree against the surety Amir. He objected to the execution contending that under the decree, and the bond executed by him his liability arose only in the event of the judgment-debtors Chandibai and Rahimbai becoming personally liable under Section 52(2) C. P. C. and only to the extent that the judgment-debtors became personally liable to pay the decretal amount on their failure to satisfy the court that they had duly applied such property of the deceased as came into their possession. This objection was overruled by the Civil Judge, II Class, Khargone executing the decree. The surety then preferred an appeal in the court of the district judge, Nimar, which was dismissed. Hence this second appeal by the surety.

(3.) Mr. Sanghi, learned counsel for the appellant, argued that the liability of the surety under Section 128 of the Contract Act, was coextensive with that of the principal debtor unless otherwise provided by the contract of surety; that the decree passed by the Madhya Bharat High Court, for the performance of which by Rahimbai and Chandibai the appellant Amir stood surety, did not make Rahimbai and Chandibai personally liable to pay Rs. 2625-10-0 to Saidanbai; that the decree was for payment of the amount out of the property of the deceased Babu in the hands of Rahimbai and Chandibai; that under Section 52 (2) C. P. C., Rahimbai and Chandibai would become personally liable to pay any amount to the decree-holder only if they failed to satisfy the court that the property of the deceased which came into their hands had been duly applied by them; and that, therefore, the liability of the surety was contingent on the judgment-debtors' failure to pay the amount personally under Section 52(2) C. P. C. and consequently the decree-holder was first bound to execute the decree by attachment and sale of the property of the deceased Babu in the hands of Rahimbai and Chandibai. Learned counsel placed reliance on Babu Rao v. Babu Manaklal, AIR 1938 Nag 413 and Subhankhan v. Lalkhan, AIR 1948 Nag 123.