GOPENDRA NARAIN DHAR Vs. RADHA KRISHNA DHAR

JUDGEMENT

(1.) THIS appeal is by a surety. The respondent became liable for a certain amount of money to the principal debtor by a decree. He paid it into Court. The principal debtor was allowed to withdraw it on the appellant's standing surety for him. The respondent was successful in the appeal with the result that the principal debtor has become liable to refund the money. Thus the respondent is not trying to recover money which he himself advanced to the principal debtor but to recover his own money which the principal debtor improperly realized. Strange though it may appear, it would seem to be a debt within the meaning of the Bengal Agricultural Debtors Act. The appellant's bond is to the effect that he will be liable if the respondent is unable to realize the amount from the principal debtor. The principal debtor did not pay. The respondent took out execution proceedings, but was unsuccessful. Eventually he attached certain property. In the meantime the principal debtor applied to a Debt Settlement Board, and on the day fixed for the sale a notice was received staying further proceedings. The respondent then started execution against the appellant.

(2.) THE contention made on behalf of the appellant is that these proceedings are premature because a part of the debt may be recovered eventually as a result of the proceedings before the Board or possibly the principal debtor's application may be rejected by the Board. Now, it is perfectly true that if the respondent agrees to the reduction of his debt in a proceeding before the Board, he will certainly not be able to recover the balance from the appellant. But that is not the point which arises here. THE respondent did all he could to realize the debt from the principal debtor but has been unable to realize anything from him. THE application to the Board is really in the nature of an application in insolvency. I am of opinion, therefore, that the learned District Judge was correct in overruling the appellant's objection. THE appeal is accordingly dismissed. I make no order as to costs.