FIRM BUDHMAL CHAMPALAL Vs. SHYAMDAS

JUDGEMENT

(1.) THIS is an appeal by firm Budhmal Champalal under sec. 18 of the, Rajasthan High Court Ordinance 1949 (No. XV of 1949) against the decree of a learned single Judge of this Court in an execution first appeal. We may briefly narrate the circumstances leading to this appeal,

(2.) THE appellant firm Budhmal Champalal filed a suit against one Devkinandan for a some of Rs. 4025/ -. A warrant of arrest before judgment under Order XXXVIII R. 1 C. P. C, was issued against Devkinandan. He was arrested and thereupon Shyamdass stood surety for his appearance. THEse proceedings took place in the court of the District Judge of Ganganagar. Later on, the suit was transferred to the Civil Judge at Suratgarh in March, 1948. It came up before the Civil Judge on 28th April, 1948. On that day the plaintiff's counsel was present but the defendant and his counsel were absent. THErefore, notice was issued to the defendant and his counsel to be present on the 10th May, 1948. Further, notice was also issued to the surety Shyamdas to produce the defendant on the 10th May. THE defendant Devkinandan did not appear on the 10th of May. THE surety Shyamdass appeared and made an application to the effect that the defendant was ill and could not appear on that day and prayed that the case may be postponed for at least six weeks. THE Judge was absent on that day and, therefore, the case came up on the 15th of May. On that day also the Judge was absent and the case then came up on the 20th May. On that day the surety appeared again but the defendant was absent. Issues were framed and the case was fixed for the 29th May when the defendant was asked to be present in order that his specimen signatures might be taken. THE defendant, however, did not appear on the 29th May and the counsel for the plaintiff did not insist on his specimen signatures being taken, and the suit was decreed ex parte. THEreafter there was an application for restoration and Shyamdass appears to have acted as Mukhtarkhas of Devkinandan defendant. This application was allowed and on the 2nd July, 1948, the defendant was ordered to appear in person. He, however, never appeared in person though a lawyer used to appear on his behalf. Eventually the suit was again decreed ex parte on the 3rd of January, 1949.

(3.) WE have not been able to find any case in this connection which is applicable to civil courts. The only case cited by learned counsel for the respondent is Mohammed Sheriff vs. Hussain Ghonse (2) (A. I. R. 1939 Madras 933. ). In that case, however, the suit was first pending before a Small Cause Court Judge and surety was taken for the appearance of the defendant. The suit was later returned for presentation to proper court as the Small Cause Court had no jurisdiction. It was presented to the same court on its regular side and the question arose whether the bond given by the surety had been discharged or not. It was held that the bond had been discharged as it could not be taken as in the contemplation of the surety when he guaranteed the appearance of the defendant in a particular case that the bond will also cover the appearance of the defendant in another case in a different Court though on the same cause of action. That case is, however, not on all fours because in that case the plaint was returned by the Small Cause Court Judge for presentation to the proper court though in actual fact, the proper court was the same Judge on the regular side. However, as the proceedings on the Small Cause Court side came to an end, and the plaint was re-presented on the regular side, it was held that the surety bond had been discharged and was of ineffective in the new Court. The present case, however, is only of transfer. But applying the principle of strict interpretation of the terms of a bond of this kind, we are of opinion that if a surety undertakes to produce a person in a particular court, he cannot be bound to produce him in another court when the case is transferred. Take for example the case where the surety undertakes to produce the defendant in the court of District Judge, Ganganagar, but for some reason or other, the case is transferred by the High Court to the District Judge of Udaipur. It would obviously be unfair to hold that the surety was bound to produce the defendant in the court of Udaipur. If he had known that he might have to do so, he could have very well refused to stand surety. WE are, therefore, of opinion that if it is intended to bind the surety to produce a defendant not only in the court in which the case is pending at the time when the surety bond is given but also in some other court to which it may be transferred there should be an express provision to that effect in the bond so that the surety may know to what extent he is going to bind himself. Where, on the plain terms of a bond, the surety has undertaken to produce a defendant in a particular court only, we are of opinion that his liability cannot be extended to production in another court if the case is transferred to another court.