RANAMAL Vs. FIRM BACHRAJ CHUNI RAM

JUDGEMENT

(1.) THIS second appeal by the plaintiff in a suit for declaration which has been dismissed by both Courts below has been placed before this Bench on a reference by one of us sitting singly.

(2.) THE facts out of which this reference arises may shortly be stated as follows. The firm Bachraj Chuniram defendant respondent No. 1 filed a suit for money against defendants respondents Bhera and Devichand. The former obtained on attachment before judgment with respect to the property of the defendants Bhera and Devichand ana the present plaintiff Ranamal is alleged to have stood surety tor them. Eventually respondent No. 1 obtained a decree against respondents Nos. 2 and 3 and took out execution of that decree against them as well as the surety who is the present plaintiff. The latter filed an objection saying that he never stood surety for the judgment-debtors and that no surety bond had ewer been executed by him. By an order dated the 26th August, 1952, the executing Court dismissed this objection summarily. The plaintiff came in revision to this Court which was dismissed on the ground that it was incompetent. Thereafter the plaintiff filed the present suit on the 2nd June, 1954, in the Court of Munsiff Banner for a declaration that the surety bond in question had never been executed by him, and, therefore, he was not bound by it and further that the decree obtained by respondent No. 1 against respondents Nos. 2 and 3 was not executable against him.

(3.) THE judgment-debtors allowed the suit to proceed ex parte against themselves. It was only the respondent No. 1 decree-holder who contested it. Some seven issues were framed by the trial Court. One of these was with respect to the alleged execution of the surety bond by the plaintiff. The other important issue, and with that alone we are concerned in the present reference, was whether the present suit was barred by the provisions of Section 47 of the Code of Civil Procedure. The trial Court took up the last-mentioned issue as a preliminary issue in the case, and having come to the conclusion that the plaintiff's suit was barred by the provisions of Section 47 C. P. C. dismissed it. The plaintiff went up in appeal to the District judge, Balotra, who by his judgment and decree dated the 8th November, 1955, upheld the decision of the trial Court. Thereafter the plaintiff filed a second appeal to this Court which was placed before a learned single Judge. As the question of law involved in the case was of considerable importance and was not governed by any decision of this Court, that learned Judge thought tit to make a reference to a larger bench. This is how this case has come up before us for decision.