YEDDULA KOTHAPALLE MUTHYALU Vs. BOLLA CHINNAYYA

JUDGEMENT

(1.) The question in this civil revision petition is whether the petitioner, who gave a surety bond undertaking to satisfy any decree which might be passed against respondents 2 and 3, can be deemed to be a judgment-debtor entitled to scale down the decree which was ultimately passed, by the procedure laid down in Section 19 of Madras Act IV of 1938.

(2.) The matter arises out of a suit brought by the first respondent against respondents 2 and 3 on two promissory notes, one dated 31 July, 1929 and the other dated 27 June, 1931. A decree was passed ex parte and subsequently there was an application to set aside the ex parte decree. The defendants were required to give security as a condition precedent to the setting aside of the decree and the present petitioner gave a bond on 4 July, 1934 in which he undertook to satisfy any decree which might be passed against the respondents 2 and 3. The ex parte decree was therefore set aside and the suit reopened and on 10 September, 1934, a compromise decree was passed in favour of the first respondent against respondents 2 and 3 for a sum of Rs. 603-10-0 with interest at 12 per cent, on Rs. 500 from the date of the plaint to the date of the decree and Rs. 83 costs and subsequent interest at six per cent. After this compromise decree was obtained, the decree-holder proceeded to execute the decree against the surety. The surety contended that he was not bound to satisfy the decree because it was based on a compromise. This contention was overruled both in the executing Court and in two appellate Courts. After the appeals had failed, the surety filed applications under Secs.19 and 20 of Act IV. The application under Section 19 was dismissed in limine on the ground that the surety was riot a judgment-debtor entitled to maintain the application. Against this order the civil revision petition is preferred.

(3.) It is contended that by reason of Section 145 of the Civil P. C. the decree becomes executable against the surety and for purposes of execution he is in fact in exactly the same position as a judgment-debtor and that there is no reason why to the extent to which he is an agriculturist entitled to relief under Act IV, he should not claim that relief by asking that the decree be scaled down under Section 19. Now it seems to us quite manifest that the surety, assuming that he is entitled to take proceedings under Section 19, must be limited to the relief which he can get with reference to the actual decree debt. But he cannot treat that decree as a renewal or inclusion in a fresh document of a previous debt due from himself and therefore there is no occasion for going into the origin of the two promissory notes upon which the decree was passed. The surety executed his bond in 1934 and it was in 1934 that the liability against him first became crystalised in the form of the decree which he had undertaken to satisfy. The liability of the surety therefore falls under Section 9 of Act IV and the proviso to that section has no bearing on the case.