RAGHUBIR SINGH Vs. MAHARUL HAQUE

JUDGEMENT

(1.) This is an appeal by the decree-holders who are aggrieved by the concurrent decisions of the Courts below by which they have refused to allow them to execute their decree against the assets of the deceased surety in the hands of the respondents.

(2.) The facts are these. The appellants obtained a money decree against one Zafrul Haque which they proceeded to execute in 1936 by arresting the judgment- debtor. Upon being brought to Court the judgment-debtor availed himself of the provisions of Section 55(4), Civil P.C., and stated to the Court that he would file an application for being adjudged an insolvent. Usual time was allowed and Eazaque stood surety for the judgment-debtor. In the, surety bond certain properties belonging to Eazaque were hypothecated in favour of the Court with this undertaking that he would produce the judgment-debtor whenever he would be called upon to do so and in case of his failure he will himself be liable for the decretal amount. The security bond was executed in favour of the Court and accepted by it on 21 September 1936 when the judgment-debtor was released. The judgment-debtor thereafter actually filed an application for insolvency but it was dismissed. The order was confirmed in appeal by the High Court. In the meantime after, the insolvency case had been disposed of by the learned District Judge the appellants on 5 March 1937 applied to the Court for execution of their decree against the surety as well as against the judgment-debtor so that the execution case proceeded jointly against both. This procedure was evidently wrong as has been held in a large number of cases and has led to complicate this litigation as will appear later. The surety filed an objection to the execution proceeding against him upon the ground that certain provisions of the law had not been complied with. But he did not proceed with this objection which was allowed to be dismissed for non-prosecution on 21 September 1937. This was apparently so because the High Court had stayed the sale of the properties pending the disposal of the appeal which was preferred by the judgment-debtor against the order of the insolvency Judge. After the appeal was disposed of by the High Court the order was received by the executing Court on 14 April 1938. The decree- holder was then directed by the executing Court to take steps for a fresh sale proclamation. The sale proclamation was actually issued but there is no evidence as to the date when this sale proclamation was issued. But after it was issued it was received back unserved as appears from Order No. 26 dated 12 May 1938. This was because the surety died on 4 May 1938, On 17 May 1938 the sons and widow of the surety, who are respondents in this appeal, put forward their objection to the execution of the decree so far as it required the sale of the assets of the deceased surety in their hands. The executing Court accepted this objection on 24 June 1988 and ordered that the sale of the assets of the deceased surety in the hands of the legal representatives would not be held. It may be re-called that the decree-holder was executing his decree jointly both against the surety and against the judgment-debtor. When this adverse order was passed against the appellants they drew the attention of the Court to the fact that the objectors had produced the judgment-debtor as they were directed to do by the executing Court and, therefore, they prayed that the judgment-debtor may be committed to civil prison. The judgment-debtor also filed a petition on the very day praying that he should be committed to civil prison. Accordingly at the request of the decree- holder the judgment-debtor was arrested and was put into the custody of the Nazir and upon the decree-holder complying with the requirements of the law in this behalf the judgment-debtor remained in custody in civil jail for a period of six months.

(3.) In the meantime the decree-holder appealed to the District Judge against the order of the executing Court refusing to allow him to proceed against the assets of surety in the hands of his legal representatives. It will be noticed, therefore, that the decree-holder although he had succeeded in getting his judgment-debtor committed to civil jail wanted to proceed with the alternative remedy which he had against the surety. The District Judge allowed the appeal and directed that the assets of the surety would be liable to be sold. Against this decision there was an appeal to this Court which was decided by Bowland and Chatterji, JJ. as Mazharul Haq V/s. Raghuber Singh reported in A.I.R. 1940 Pat. 142 on 16 August of that year. The learned Judges held that all the proceedings against the heirs of the surety were irregular and directed that the proceedings should be regularised by bringing the heirs of the surety upon the record as his legal representatives and then notioe should be issued under Order 21, Rule 22, Civil P.C., against them so that they may be allowed to raise whatever objection they had to put forward and further directed that it is only after this procedure had been adopted that execution could proceed against the legal representatives. Accordingly the proceedings were regularised as directed by the High Court. The respondents on being brought on the record took the objection that as the judgment-debtor had actually been committed to civil jail and has served out the whole of the period of six months provided by law, the decree-holder has no longer any right to proceed against the assets of the surety in their hands. The Courts below have concurrently accepted this contention and refused to allow the decree-holder to execute the decree against the heirs of the surety. Hence the second appeal to this Court.