ANNADANA JADAYA GOUNDAR Vs. KONAMMAL

JUDGEMENT

(1.) This is an appeal against the order refusing to make the surety, the respondent (Anganna Reddi) liable in execution. The facts may be briefly stated. A lady by name Konammal obtained a decree against one Annadana Jadaya Goundar for possession of a jaghir, and an appeal was preferred by the latter to the High Court. Konammal was allowed to execute the decree pending the appeal on her furnishing security. A security bond was thereupon executed by four sureties, including, the respondent Anganna Reddi. The material portion of that bond runs thus: We hereby undertake that the 1 plaintiff (Konammal) will restore the jaghir which she had taken delivery of in execution, that she will act according to the decree of the Appellate Court, that she will pay whatever amount she is liable to pay in accordance with the appellate decree in connection with the said jaghir, that if she commits default in so paying, the amount that she is liable to pay may be realised from the properties hereby given as security

(2.) In the appeal Goundar succeeded and got back from Konammal the jaghir in question by way of restitution. Then he applied also by way of restitution for payment of mesne profits. But without any inquiry by the Court, Goundar and Konammal entered into a private arrangement as to the. claim to the mesne profits. To this proceeding the surety Anganna Reddi was not a party. The amount claimed in respect of mesne profits was Rs. 33,000, but by the arrangement the profits were fixed at Rs. 20,000 and it was agreed that Goundar should receive towards this amount Rs. 9,000 odd standing to the credit of Konammal in Court and that the balance of Rs. 10,000 odd should be paid by Konammal within a period of two months. In default (then follow the important words) "Goundar should take execution proceedings against the immovable properties which were offered as security by the sureties". The agreement then goes on to say, "All reliefs which the petitioner prays for in this petition have been settled by the aforesaid arrangement". An order was made by the Court on the 10 September, 1926, embodying this compromise. It is alleged by Goundar that towards the amount due under the order, namely, Rs. 10,000 odd, one of the sureties subsequently paid Rs. 5,000, and he now claims in execution the balance of Rs. 5,000 odd against Anganna Reddi, the respondent. It is not disputed, though the instrument is not happily worded in this respect, that the claim to mesne profits by way of restitution is covered by its terms.

(3.) Anganna Reddi contends that the claim made by Goundar in respect of mesne profits was an extravagant one and that the compromise and the order based thereon were collusive and fraudulent. Whether it is open to Anganna Reddi to raise this plea in these proceedings is a question which does not arise in the view I have taken.