RAJANI KUMAR SEAL Vs. MAHALUKMI BANK LTD

JUDGEMENT

(1.) In this case what has happened, shortly stated, is as follows : It appears that the decree- holder obtained a decree against the judgment-debtor and applied for execution of the decree. The present appellant thereafter intervened and agreed to stand as surety for the amount of the decree passed against the judgment-debtor. Thereafter several applications, as the record shows, were made by the decree-holder to obtain satisfaction of the decree by means of execution. The judgment-debtor and the surety raised various objections and it would appear that no less than 15 miscellaneous cases were started at the instance of the judgment-debtor and the surety objecting to the execution of the decree on various grounds. This took place from 1 November 1924 to 24 December 1929. The decree-holder, harassed and frustrated, made another application for execution on 24 March 1930. The judgment-debtor and the surety not content with raising objections in the 15 miscellaneous cases referred to above, raised a fresh objection in the shape of an application under Order 21, Rule 2, Civil P. C, asking for the payments alleged to have been made in satisfaction of the decree being certified by the Court and also under Section 47, Civil P. C. This application was filed on 14th November 1930. Neither the judgment-debtor nor the surety took any steps whatsoever to proceed with their objections to the execution or with their application under Order 21, Rule 2, Civil P. C, and the result was that their applications were dismissed on 11 April 1931 for nonprosecution. The judgment-debtor applied for a reheating of the application which was dismissed for default and that was on 16 April 1931. This application for rehearing was however dismissed on 9 May 1931. So far as the judgment-debtor is concerned, it does not appear that ho took any further steps; but, so far as the surety is concerned, ho made another application out of which this appeal has arisen and that was on 25 May 1931.

(2.) The surety's present application was under Section 47, Civil P. C, and also under B. 135, Contract Act, and his allegation was that the decree had been satisfied and that in the events which had happened whatever liability had been undertaken by him as surety had come to an end and he was entitled to be released. This application when analyzed would appear to be one really to obtain the same order as the judgment-debtor had applied for under O.21, Rule 2, Civil P. C. It was no doubt a round about application to obtain the precise relief; but, as I have stated just now, the practical relief wanted by the surety was an order of the Court stating that it had been satisfied that the decretal amount had been paid by the surety and that no further liability attached to him. Having regard to the facts stated above it would appear that the question is whether the surety could by means of a fresh application under Section 47, Civil P. C., obtain the same relief as the judgment-debtor would have obtained if he had been in time within Art. 174, Lim. Act, in applying under Order 21, Rule 2, Civil P. C; in other words, the question is if the judgment-debtor is not able by reason of the lapse of time or for by some other reason to obtain an order under Order 21, Rule 2, whether the surety in such circumstances is prevented from obtaining the same relief. This identical question has been the subject of debate and decision in the case of Tambi Reddi Virareddy v. Devi Reddy Patetvirami Reddy & Co. A.I.R. 1926 Mad. 674. The facts are more or less analogous and it has been held in that case following a decision of this Court in 1922 that the surety is bound so long as the judgment-debtor is bound and the judgment-debtor is bound so long as any payments which he might have made are not certified by the Court; in other words, the position is that if the judgment-debtor cannot get any relief at this distance of time by applying to the Court under Order 21, Rule 2, Civil P. C., the surety must be in the same position as the judgment-debtor is now and it must therefore follow that it is not open to the surety to apply under Section 47 and raise the same question over again. There is sense in what has been laid down and I am content to follow the case reported in Tambi Reddi Virareddi V/s. Devi Reddi Patteviranii Reddi & Co. A.I.R. 1926 Mad. 674 as an authority for supporting the judgment of the Court below although on different reasons.

(3.) The result therefore is that, in my opinion, the surety is not now entitled to raise the same question over again having regard to the fact that the judgment-debtor's application under Order 21, Rule 2, Civil P. C. has been negatived; and that being so, the appeal is without any substance and must be dismissed with costs, hearing-fee two gold mohurs. Rankin, C.J.