KANAILAL MOOKERJEE Vs. KALI MOHAN CHATTERJEE

JUDGEMENT

(1.) The question which arises in this appeal is whether in the events which happened the surety has been discharged.

(2.) The appellant before us instituted a suit against one Lal Mohan Chatterjee for the recovery of Rs. 3100/-, Immediately after the Institution of the said suit he caused an attachment to be made on the undivided half share in the dwelling house of the said defendant under Order 38, Rule 5, Civil P. C. The said attachment was removed upon the respondent in this appeal having stood surety for Rs. 3535-13 for the payment of claim and costs of the appellant. The bond of surety was executed on 2-1-1951. The operative part of the said bond provides that the said surety Would remain liable for the payment of Rs 3535-13 and if the said sum is not realised from the defendant, then the Court would realise the same from his movable and immovable property or from his person. It should be noted that the said bond was given in favour of the Court. Thereafter, on 24-7-1951 a decree was passed by consent of the parties in the said suit. In the first clause of the consent decree it is mentioned that there will be a decree for the entire claim in the suit and costs. The second clause, which is important for our present purpose, provides that if the defendant pays within the month of Aswin 1358 B.S. the sum of Rs. 2400/-, then the decree will be deemed to have been satisfied otherwise the decree-holder will be entitled to realise the entire decretal amount by execution. In Clause (3) it is mentioned that the surety will remain liable until the decretal amount is realised. It should be noted that the respondent was not a party to this compromise. The said sum of Rs. 2400/- not having been paid within the month of Aswin as stipulated in the said consent decree, the decree-holder, started execution for the realisation of the entire decretal amount against the surety, that is with present respondent. An objection was filed to the said execution by the said surety under Section 47, Civil P. C. The substance of that objection was that in view of the consent decree and in view of the terms thereof the surety has been discharged. The trial Court negatived that contention. There was an appeal against the said decision and the lower appellate Court reversed the finding of the trial Court and held that the surety was discharged. It is against that decision that the present appeal has been preferred.

(3.) Before us the learned Advocate appearing for the appellant contended in the first place that the fact that the decree was passed by consent did not discharge the surety. He further contended that the fact that the decree-holder agreed to accept a lessor sum if paid within a certain date did not also absolve the surety of his liability. In support of his contention he relied on the case of Jia Bai v. Joharmull Bothra, decided by Rankin C.J. and Costello J., 36 Cal WN 749 : (AIR 1932 Cal 858) (A).