TEJ RAM Vs. AMAR SINGH

JUDGEMENT

(1.) The brief facts giving rise to this petition are that Tej Ram, petitioner got a decree for possession by way of pre-emption of agricultural land on 15-1-1969. He deposited the pre-emption amount and sought for the possession of the suit land. The vendee filed an appeal and his dispossession was stayed on the condition that he was required to furnish the security in the sum of Rs.5,000/-. The said security was duly furnished and the appeal was ultimately dismissed on 27-2-1971. The vendee then preferred a second appeal in the High Court and there also he got a stay order against the execution of decree on furnishing the security towards the mesne profits for the period of the pendency of the second appeal in the sum of Rs.10,000/-. Ultimately, the second appeal was dismissed in the High Court on 18-11-1981. The judgment debtor also approached the Supreme Court, but failed. The plaintiff got the possession of the suit land in execution of the decree. Then he filed an application for the recovery of an amount of Rs.25,000/- as mesne profits for the period for which he was not delivered the possession. This application was contested by the judgment-debtor. Incidentally the two sureties were not made parties to the said application. In the reply filed on behalf of the judgment debtor, jurisdiction of the Court, inter alia, was also challenged The executing court took the view that unless there is a specific decree for the ; specific amount passed by the trial Court, or unless there is an order to that effect, the executing court could not grant the application. Dissatisfied with the same, the decree-holder filed this petition in this Court.

(2.) The main question to be decided in this petition is as to whether the persons who stood surety for the judgment-debtor in the two Courts i.e. in the lower Appellate Court as well as in this Court are liable to pay the amount for which they were sureties, or not. This matter stands concluded by the judgment of this Court in Naurang Singh v. Teja Singh (1976) 78 Pun LR 96. In the recent judgment of Bombay High Court in Board of Trustees of the Port of Mormugao v. Chowgule and Company Pvt. Ltd Mormugao Harbour, Goa, AIR 1985 Bom 174 as well, the same view has been affirmed. Apart from that, S.145 of Civil P.C. reads as under :- Where any person has furnished security or given a guarantee - (a) for the performance of any decree or any part thereof, or (b) for the restitution of any property taken in execution of a decree, 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 in the manner herein provided for the execution of decrees, namely :- (i) if he has rendered himself personally liable, against him to that extent; (ii) if he has furnished any property as security, by sale of such property to the extent of the security; (iii) if the case falls both under clauses (i) and (ii), then to the extent specified in those clauses, and such person shall be deemed to be a party within the meaning of S.47 : Provided that such notice as the Court in each case thinks sufficient has been given to the surety." Reading the said provision it is quite evident that any person who has furnished a security or given a guarantee, decree against him may be executed in the same manner as provided for the execution of the decrees. Of course, the said persons will be liable to pay the amount for which they were the sureties. If the decree-holder claims over and above that amount, then the same will be determined by the executing court and after determination, the amount over and above, that, if any, will be recovered from the judgment-debtor. No judgment taking the contrary view has been cited by the judgment-debtor. It is held in Naurang Singh's case (1976-78 Pun LR 96) (supra) that if the first appellate Court on its inherent jurisdiction under S.151, C.P.C. demanded security for payment of rnesne profits from the judgment debtor when he had applied for stay of his dispossession in execution of the decree and the said security bond was executed by the surety, in pursuance thereof, then the security bond could be executed similarly in the execution proceedings without any recourse to a fresh suit.

(3.) In these circumstances, this petition succeeds, the impugned order is set aside and the case is sent back to the executing court for proceeding with the execution application in accordance with law. Of course the decree-holder will implead the sureties as party to the execution application in order to claim the amount from them. The parties have been directed to appear in the executing court on 8-11-1985. Records of the case be sent back forthwith. Petition allowed.