S AYYASWAMI AYYAR Vs. SIVAKKI AMMAL

JUDGEMENT

(1.) Mr. Seshagiri Sastri for the respondent takes an objection in limine that the present appeal is incompetent. The point to be decided is, whether an appeal lies against the order in question. The facts may be briefly stated.

(2.) One Chellammal executed a deed of mortgage in favour of Sivakkiammal, the respondent. In a suit (O.S. No. 13 of 1919 on the file of the Mayavaram Sub-Court). subsequently brought by Chellammal's husband Ramachandra Ayyar against Ayyasami Ayyar the appellant, Ramachandra Ayyar was appointed Receiver. He was directed to furnish security and, Chellammal executed on July 24, 1917, a. security bond in favour of the court, creating a charge over the property already mortgaged to Sivakki. Sometime later Chellammal executed another mortgage in; favour of one Ramaswami Ayyangar. Sivakki then filed a suit on the foot of her mortgage (O. S. No. 239 of 1922 on the file of the Munsif's Court, Madura). At that time she alleges she was not aware of the security bond executed in favour of the Mayavaram Sub- Court. Naturally, while she impleaded Ramaswami Ayyangar as a party, she did not add as defendant any person claiming an interest under the security bond in question. Even if she was aware of the security bond, she would have had a difficulty in deciding as to whom she should add as a party, the charge having been created in favour of the court. Sivakki an due course obtained; a decree, brought the property to sale and on February 1, 1926, purchased it herself in court auction and in October following , she was put in possession. Subsequently Aiyaswami Ayyar instituted proceedings in O.S. No. 13 of 1919 against the surety Chellammal, obtained an order against her and got it transferred to the Madura Munsif's Court for execution. To those proceedings Sivakki was not a party. The order was executed, the charged property was brought to sale and Aiyaswami Ayyar himself purchased it in court auction some time after July 30, 1928. Then, finding that the property was in the possession of Sivakki he moved the court, complaining of her obstruction, to remove heir from the property, and the lower Court has made an order rejecting the application. The present appeal is from that order.

(3.) Mr. Seshagiri Sastri for the respondent contends that the order against the surety cannot be deemed to be one under Section 145 of the Civil Procedure Code. The order was for the sale of Chellam's immovable property, and the section applies only where a surety has made himself personally liable. If s. 145 does not apply, the learned Counsel contends that Chellammal cannot be deemed to be a party to the suit (O.S. No. 13 of 1919) within the meaning of Section 47. It is true that to the proceeding in question Section 144 does not apply and we must regard that the order against; the surety was made, not under the terms of that section, but under the general power, which the Judicial Committee has held the courts possess in regard to executing orders made against sureties: Raghubar Singh V/s. Jai Indra Bahadur Singh 55 Ind. Cas. 550 : 42 A 158; 46 IA 228; 22 OC 212 : 18 ALJ 263, 22 Bom. LR 521 : 38 MLJ; 302: 13 LW 82 : 6 OLJ 682 (PC). But the very judgment of the Judicial Committee, shows that what was contemplated was an order in the suit itself (see p. 167.), and the implication is that the surety was dealt with as if he was a party to the suit. Section 145, while it prescribes a remedy against the surety also provides for the surety's remedy by way of appeal. When their Lordships of the Judicial Committee held that there was power outside Section 145 to proceed against the surety, they could not have intended to deprive him of the remedy which he would have had, had the proceedings been taken under Section 145. Their Lordships point out that the surety was not a party to the suit at the stage of the fixation of mesne profits, that is to say, before the execution commenced. But having regard to their Lordships decision and the policy underlying Section 145, we must hold that it was not intended that the surety's rights should in this respect be abridged.