RAM SARAN DAS Vs. YUDHISHTAR PRASAD

JUDGEMENT

(1.) The question referred to the Full Bench is: Where a Court obtained a security bond which hypothecated immovable property to secure a proper disposal of money due to minors, deposited with it, whether an assignment of the security bond in favour of the minors on their attaining majority in order to enable them to realize the money from the surety must be made by way of a regularly stamped and registered deed of sale or may be made by an order passed by the Court.

(2.) It appears that Rs. 30,000 odd had been deposited to the credit of certain minor plaintiffs in the execution proceedings. Their mother, Mt. Saraswati, who was their guardian ad litem in the suit, applied to the Court for permission to take out the amount. Security was demanded from her under Order 32, Rule 16, Civil P. C, and on her behalf one Hakim Jiwan Lal executed a registered security bond dated 13 November 1922, under which he made himself liable for the whole amount and agreed that the Court would be at liberty to realize the said sum from the property hypothecated by him under the document.

(3.) After the attainment of majority the plaintiffs applied to the Court for permission to bring a suit against the surety because the amount had been taken out by their guardian and paid to the surety himself, who had executed a separate agreement to refund the amount. As the surety had subsequently transferred a part of the hypothecated property it was not considered sufficient to proceed against him personally under Section 145, Civil P. C, but it became necessary to enforce the charge by a regular suit. The Court granted permission to the applicants, stating that with the consent of the surety permission was granted to the applicants as prayed. A condition was however laid down that in order to give time to the surety to pay up, the suit should not be instituted before the expiry of six months, when the suit was instituted by the plaintiffs against the surety and his son, an objection was raised that the suit was not maintainable inasmuch as the bond in question had not been formally assigned to the plaintiffs. It is this question of law which has been referred to us for an answer.