MUHAMMAD HAFIZ Vs. BADR-UD-DIN

JUDGEMENT

(1.) THIS appeal represents a further stage in certain execution proceedings which have been once already before this Court, vide the case of Muhammad Hafiz v. Muhammad Ibrahim (1920) I.L.R. All. 152. The appellant now before us, Sheikh Badr-ud-din Khan Bahadur, is one of the two sureties who bound themselves for the satisfaction of a certain decree. One of the points taken in appeal before us is as to the interpretation of the security bond and the nature of the obligations thereby undertaken by the sureties. We do not say, for a moment, that Sheikh Badr-ud-din Khan Bahadur, who was not a party to the appeal before the Court in the reported case referred to, is not entitled to be heard on this point; but, having heard him, we are still of opinion, that the terms of the security bond were rightly interpreted by this Court when delivering the aforesaid judgment. The result is that one of the obligations, jointly and severally as sumed by the two sureties, was the satisfaction of the entire decree, in the event of the judgment-debtor, Muhammad Ibrahim, failing to satisfy it. The only further question that can be raised is one of limitation. It has been pointed out to us that the first time when proceedings were taken against the present appellant was in the month of October, 1920. We have already decided in the reported case that an application for execution, dated the 6 of March, 1918, where execution was sought by arrest of the person of the judgment-debtor, was not barred by limitation on the date on which it was made. We are still of the same opinion. Now the question is whether that application saves limitation for the application of the 25 of October, 1920, in which the prayer was for recovery of the amount of the decree by arrest of the judgment-debtor in the first place, or, failing satisfaction by that means, by proceedings against the persons of the two sureties. If that application was in time, then the application now before us is also in time. The question really depends on the manner in which the provisions of Section 145 of the Civil Procedure Code are to be applied to those of Art. 182 of the Schedule to the Indian Limitation Act (IX of 1908). We are of opinion that the view taken in the reported case was correct and that it practically governs also the case now before us. It has been noted by us that the learned Judges of the Bombay High Court have since then, in the case of Cholappa Bin Gattinha Sauna V/s. Ramchandra Anna Pai (1920) I.L.R. 44 Bom. 34, distinguished against the previous decision of the same court which has been referred to before us in argument as supporting the case for the appellant. The case against the appellant really admits of being stated in the form of a dilemma. Either the effect of Section 145 of the Code of Civil Procedure is to make the decree, in a case like the present, equivalent to a decree passed jointly against the original judgment-debtor and the surety or the sureties, or it has not that effect. If it has, then the case is covered by the closing words of Explanation (1) to Art. 182 of the schedule., and an application for execution against a judgment-debtor or against any one of the sureties affords a starting point for a fresh period of limitation, even though the application next made be against a different surety. On the other hand, if the effect of Section 145 of the Civil Procedure Code be not as suggested above, then the words of Explanation (1) aforesaid have no application whatsoever to a case like the one now before us and must altogether be excluded from consideration. In that case we are driven back to the words of Clause (5) of Art. 182 itself. The point we have to decide is whether the application of the 6 of March, 1918, was or was not an application in accordance with law to the proper court for execution of the decree, or to take some step in aid of execution of the decree. We cannot answer that question otherwise than in the affirmative. We think the appeal fails and it is dismissed with costs.