JAGDAM PROSAD SINGH Vs. SATYA BHUSAN MUKHERJEE

JUDGEMENT

(1.) This appeal, in our opinion, should be allowed. The Appellant before us was the surety and he filed an objection to the execution of the decree. The said objection was overruled by the learned Judge and it is against that decision that the present appeal has been preferred.

(2.) The position is this: There: was a suit filed by the decree-holder against a number of Defendants. One of those Defendants was Sm. Krishna Kumari Singh. She was Defendant No. 1 in the suit. An application was made for attachment before judgment of the brick field of the said Defendant Sm. Krishna Kumari Singh. In the said proceedings the Appellant stood surety for the said Defendant and executed a surety bond in favour of the presiding Judge of the court and his successors declaring and agreeing "that in case the decretal dues including "costs to be passed in the suit against the Defendant owner of the "brick field be not fully realised from the said Defendant in "execution thereof," he shall pay the same up to Rs. 4,500 and in default the decree-holder will be entitled to realise the same by levying execution on his movable and immovable properties and on his person. On March 20, 1944, a decree was passeld against the Defendants including the Defendant No. 1 for Rs. 3,117-15-6. On August 30, 1944, the pleader for the decree-holder served a notice on the Appellant asking him to make payment of the decretal amount. It should be noted that notice was not given by the court. On March 11, 1947, the decree-holder filed a petition for execution of the said decree. The said petition was a curious one. It was no doubt made on a tabular statement, but the Appellant was described therein as the judgment-debtor, and the relief prayed for was as follows:

(3.) The mode in which the assistance of the court was required were as follows: