DHARMAPURAM MUTT REPRESENTED BY SRI LA SRI SHUNMUGA DESIKAGNANA SAMBANDA PANDARA SANNADHI AVERGAL Vs. MUHAMAD USMAN SAHIB

JUDGEMENT

(1.) One Dawood Sahib obtained a decree in O.S. No. 4 of 1927 in the Additional Sub-Court, Tanjore. In execution of the decree, a deposit of Rs. 2,745 was made. Of this sum, deducting what was attached by the creditors of Dawood Sahib, a sum of Rs. 1,569-13-3 was available to be paid to him, and he was permitted to Withdraw that amount on furnishing security. Security was offered by one Kadir Bivi Ammal who executed a deed of security on 17 October, 1928. This bond was executed in the District Court and is headed A.S. No. 60 of 1928. That appeal resulted in part in favour of the appellant and the amount payable by the judgment-debtors to Dawood was reduced by Rs. 550. This decision was given in April, 1929. There was then a second appeal to the High Court and also a Memorandum of Cross-objections. On 20 March, 1934, the High Court gave judgment dismissing Dawood Sahib's suit in toto. In October, 1935, the successful appellant in the High Court applied to execute the surety bond and to recover from the surety the full sum of Rs. 1,569-13-3 which had been paid out to Dawood Sahib in 1928. Both the Courts have dismissed this execution application on a construction of the terms of the bond, and the lower appellate Court has also held that in so far as the bond might have been otherwise enforced, in regard to the decree of the first Court in A.S. No. 60 of 1928, it is barred by limitation.

(2.) I think there can be no doubt that on a construction of the bond, the Courts- below are right. The important clause is this: If in this number the decision of the lower Court is altered in favour of the appellant and to the detriment of the respondent and if the respondent has to pay the whole or a portion thereof, for that amount I...shall be liable.

(3.) It is argued in this appeal that the word number , which is an English word transliterated into Tamil can be used to mean the whole course of litigation and its use can therefore in this instance be taken as representing the intentions of the parties that if at any time before this litigation came to an end, there was a decree in favour of the appellant, the surety's liability should become due.