BHAGWANDAS MADANLAL Vs. NABIN CHANDRA CHOUDHURY

JUDGEMENT

(1.) The decree-holder, appellant in this appeal, obtained a decree against the firm Kailas Chandra Sashi Bhusan Roy on 13 August 1929. The application for execution of the decree so passed in favour of the decree-holder was made on 15 November 1930. On 19th December 1930, the judgment-debtor Sashi Bhusan Roy was brought under arrest. Sashi Bhusan Roy and he filed a petition of objection under Section 47, Civil P.C.

(2.) It appears from the order recorded in the order sheet of the Execution case on 19th December 1930, that the judgment-debtor Sashi Bhusan Roy was released on his furnishing security "to the extent of the dues, for surrendering himself to Court if this Section 47 petition fails." The security was in due course furnished, and on 20 December 1930, the security bond filed by the respondent in this appeal, Nabin Chandra Chowdhuri, was accepted, and the judgment-debtor Sashi Bhusan Roy was released. The application under Section 47 of the Code came to be dismissed by the Executing Court on 21 April 1931. In the intervening period, i.e. the period from 20 December 1930 to 21 April 1931, an attempt was made by the judgment-debtor Sashi Bhusan Roy to pay up the decretal dues in instalments. An attempt was also made with the consent of the decree-holder for production of a surety, so far as the satisfaction of the decretal dues by instalments was concerned. These attempts on the part of the judgment-debtor however failed. On 28 April 1930, after the dismissal of the application under Section 47 of the Code, there was an application filed in Court by the judgment-debtor containing the definite statement that he was surrendering himself and was going to make a payment of Rs. 50 towards the decretal dues. This amount of Rs. 50 was received by the pleader for the decree-holder on that very date.

(3.) It appears also from the order recorded on that date, 28 April 1930, that the payment of Rs. 50 was brought to the notice of the Court and the Court also took, notice of the fact that the judgment-debtor was trying to pay off the decretal debt in instalments. The prayer for instalments however could not be allowed in the execution case. The order recorded by the Court further shows that an opportunity was given to the judgment-debtor for payment of Rs. 100 within 20 May 1931: the execution case was to be put on the said date for orders. The pleader for the judgment-debtor Sashi Bhusan Roy undertook to produce the judgment-debtor in Court on that date, viz., 20 May 1931, on his failure to pay the money. What happened on 28 April was this: On 23 May 1931 notice was issued on Nabin Chandra Chowdhury, the surety respondent in this appeal, to produce the judgment-debtor by 30 May 1931, or to deposit the decretal dues in Court, in terms of the bond executed by this surety Nabin Chandra Chowdhury, on 19 December 1930. The surety showed cause before the Court executing the decree, and raised objections to the decree-holder being permitted to proceed against him as surety, in the matter of the satisfaction of the decretal dues. The objections were in due course heard and disposed of by the Court executing the decree and according to the learned Munsif, there were no grounds on which the objections raised by the surety could be allowed. According to the Munsif, the judgment-debtor's production in Court on 28 April 1931 did not appear to have been caused by the surety and therefore the surety's liability continued under the surety bond.