S SANKARANARAYANA AIYAR Vs. PARAMASIVAM PILLAI

JUDGEMENT

(1.) This is a petition to revise the order of the Additional Subordinate Judge, Tinnevelly, refusing to discharge the petitioner from his suretyship under a security bond executed by him under Section 55(4) of the Civil Procedure Code.

(2.) The facts are simple and not in dispute. The first respondent obtained a decree against the second respondent and had him arrested in execution thereof. When the latter was brought before the Court under arrest, the petitioner deposited Rs. 500 as cash security and executed a surety bond on the strength of which the Court released the judgment-debtor from arrest. The bond runs as follows: In case the respondent (that is the judgment-debtor) fails to apply to be declared an insolvent within one month from this date, and in case the said respondent fails to appear, when called upon in any proceeding upon such application or upon the decree in execution of which the said respondent was arrested, the Court may direct the cash security to be realised, but not personally from the depositor.

(3.) The second respondent then applied to be adjudicated insolvent and was adjudged accordingly. A few months later, when those proceedings were still pending, the petitioner applied to the executing Court under Secs.55 and 151 of the Civil Procedure Code offering to produce the judgment-debtor before the Court on any day that might be fixed and praying for discharge from his suretyship, as he did not like to continue as surety any longer. The Court below rejected this application on the ground that, in view of the terms of the security bond, the petitioner could not claim release from his obligation as surety, and there was nothing in Section 55 of the Code to justify such release. The petitioner has challenged the validity of this order.