SURENDRA NATH GHOSH Vs. KESHAB LAL GHOSH

JUDGEMENT

(1.) This appeal is directed against an order of the Additional District Judge of Khulna, dated 10th September 1919. In this case it appears that in execution of a decree aggregating, with interest and costs, a sum of about Rs. 2,000 the judgment-debtor was arrested and Imprisoned. He was thereafter released on furnishing security for a sum of Rs. 500; the surety undertaking to produce the judgment debtor in Court in the event of his not applying to be adjudicated an insolvent within a month. The judgment debtor, in fact, did not apply for adjudication as an insolvent and the surety further failed to produce him. It is not disputed on these facts that the conditions of the surety-bond have not been fulfilled and that the sum of Rs. 500 has become payable by the surety. That sum has, in fact, been paid by the surety. The question before us is, whether the Rs. 500 should be appropriated or credited against the decretal amount or should be taken by the decree-holder as a solatium for the delay brought about in the execution of his decree.

(2.) The surety-bond runs thus: -"If the aforesaid judgment debtor does not apply to be declared an insolvent within a month from this date, I undertake to produce him under the orders of the Court. If I fail to do so, then I will be liable to pay a sum of Rs. 500 in accordance with the order of the Court." The terms of the bond do not in themselves make it clear whether the payment made by the surety was to be credited against the decree or was to be made available to the decree-holder over and above his decretal amount. But we are of opinion that the intention of the parties and of the Judge who took this bond was that the sum would be credited against the decree. The Subordinate Judge who took the bond has shown by his order which has been reversed by the learned Additional District Judge that this was the view he took of the transaction. Possibly, from the language of the bond and more particularly the words "in accordance with the order of the Court," it might be argued that it was for the Judge who took the bond to decide how the sum that ultimately became payable should be appropriated. On the question in controversy we have been referred more particularly to two reported cases, namely, the case reported in Basmati Lal v. Cheddu Singh 16 Ind. Cas. 118 : 39 C. 1048 : 16 C.W.N. 664 and the case reported in Koylash Chandra Shaha v. Christophoridi 15 C. 17l : 7 Ind. Dec. (N. s.) 698. In the first of these cases it was held that in a case such as this the money should not be declared a forfeiture in favour of Government, but must be appropriated for the benefit of the decree-holder whose rights were interfered with. But there, apparently, the question did not arise whether the money should be appropriated towards the satisfaction of the decree or should be given to the decree holder as a solatium or further benefit over and above the decretal amount. In the second case, the terms of the bond make it clear that any sum paid by the surety, should he fail to comply with the conditions of the bond, was to be applied in satisfaction of the decree, and that we think, represents the usual course of proceedings in cases of this kind.

(3.) For these reasons, we set aside the order of the Additional District Judge and restore the order of the Subordinate Judge with costs in all Courts. We assess the hearing fee in the Court of first instance at rupees ten, in the, Court of first appeal rupees sixteen and in this Court at one gold mohur.