KUNJA MOYEE DASSI Vs. AKSHOY KUMAR DAS

JUDGEMENT

(1.) This miscellaneous appeal is directed against an order of the learned District Judge, Howrah, setting aside an order of the Subordinate Judge, 3rd Court, Howrah, for the execution of a security bond for the sum of Rs. 800/- against the surety Akshoy Kumar Das. The facts are briefly as follows:- The appellant Kunja Moyee Dassi instituted a suit against Panchanan Rong and others for declaration of her title to the suit property and for recovery of khas possession therein on the allegation that the defendants were holders of chakran lands and were no longer entitled to hold the same. There was also a prayer for recovery of mesne profits or bhag produce for 1355 and 1356 B. S. and for mesne profits up to the date of delivery of possession or for three years after the decree. During the pendency of the suit the appellant filed an application for temporary injunction, restraining the defendants Panchanan Rong and others from cutting the paddy which they had grown on the suit land. On 22-12-1954 the defendants filed an application for permission to cut and remove the paddy grown by themselves. The learned Subordinate Judge by an order dated 6-1-1956 permitted the defendants to harvest the paddy on furnishing security to the extent of Rs. 800/-. The defendants furnished such security and Akshoy Kumar Das who is respondent in this Court stood surety to the extent of Rs. 800/-. In the security bond it was stated that if the defendants lost the suit the surety would pay Rs. 800/- to the plaintiff appellant Kunja Moyee Dassi. The plaintiff appellant obtained a decree declaring her title and for recovery of khas possession and she also got a decree for price of bhag produce for 1355 and 1356 B. S. and it was provided that on paying Court fees for the same there would be a decree, for mesne profits up to the date of the decree. The suit was decreed on 14-7-1955 corresponding to 1st Sravan 1352 B. S. so that on filing proper Court fees the plaintiff wag entitled to a decree for mesne profits for 1357 to 1361 B. S. But such Court fees were not put in and therefore no decree for mesne profits for the period from 1357 to 1361 B. S. was passed. The plaintiff without paying such Court fees and obtaining a decree for recovery of mesne profits for the period 1357 to 1361 B. S. started an execution proceeding against the surety Akshoy Kumar Das for recovery of Rs. 800/- which he had undertaken to pay under the terms of the security bond in case the defendants lost their suit. There was an objection by the surety Akshoy Kumar Das to the effect that the decree holder was not entitled to recover Rs. 800/- from him because firstly the decree holders had not put in Court fees in respect of the mesne profits for the period 1357 to 1361 B. S. and secondly because the mesne profits of the land for years 1355 and 1356 B. S. had been assessed at Rs. 266/- per year and that the Price of the paddy and the straw would not exceed Rs. 290/- at most after deducting half the price of the produce for the cost of cultivation, and that in the circumstances even if the plaintiff had filed court fees the plaintiff could only recover up to maximum amount of Rs. 290/- against him and not the sum of Rs. 800/-. The learned Subordinate Judge, however, overruled the objection of the surety Akshoy Kumar Das and held that under the terms of the security bond which the surety had executed the surety had bound himself to pay Rs. 800/- if the defendants lost the suit, and as the defendants had lost the suit, the surety could not escape the liability. Accordingly, the objection of the surety under Section 47 of the Cr. P. C. was dismissed.

(2.) There was an appeal to the District Judge, Howrah, and the learned District Judge upheld the objection of the surety viz., that as the Plaintiff had not yet got a decree for the mesne profits for 1361 B. S. by paying appropriate Court fees on the amount, the order or decree for recovery of any money would not be executed against the surety. In this connection the learned District Judge observed that no doubt that there was the language of the security bond that the surety would be liable to pay Rs. 800/- if the defendants failed in the suit; but still the fact remained that the defendants who had grown the paddy in 1361 B. S. were permitted to reap and take away the paddy on condition of furnishing a security, and the Court intended that the defendants and the surety should be liable for the mesne profits for the year 1361 B. S. if the plaintiff succeeded in getting a decree for such mesne profits, and that the decree could be executed against the surety only after such decree for mesne profits had been passed, and to the extent of such mesne profits. Accordingly the appeal was allowed and the surety's objection under Section 47 of the C. P. C. was also allowed and the execution case was dismissed as premature, it being held that the plaintiff decree-holder should first have obtained a decree in respect of the mesne profit for 1361 B. S. by paying the necessary Court fees and then proceeded to execute the decretal amount for mesne profits for 1361 B. S.

(3.) Against that order the plaintiff decree-holder Kunja Moyee Dassi has preferred this appeal. Mr. R. B. Bakshi appearing for the appellant has repeated his argument which found favour with the learned Subordinate Judge viz,, that the surety having made himself liable by the terms of the security bond to pay Rs. 800/- if the defendants lost the suit, could not resile from the terms of the bond and was bound to pay Rs. 800/-, because the defendant had admittedly lost the suit and had not filed any appeal in a superior Court against the decree which had been passed against them. Section 145 of the C. P. C. is the provision of law under which a decree or order for the recovery of money can be executed against the surety, and we have to see whether under the terms of Section 145 the security bond can be executed against the surety Akshoy Kumar Das. Section 145 provides that where any person has become liable as surety (a) for the performance of any decree or any part thereof, or (b) for the restitution of any property taken in execution of a clears or, (c) for the payment of any money or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself Personally liable, in the manner herein provided for the execution of the decrees, and such person shall, for the purposes of appeal, be deemed to be a party within the meaning of Section 47.