M NAGIER Vs. KRISHNA CHETTIAR

JUDGEMENT

(1.) The defendant in Original Suit No. 174 of 1921 on the file of the Subordinate Judge's Court of Madura, was arrested upon an execution petition, Execution Petition No. 60 of 1921. After arrest he paid Rs. 1,750, and as regards the balance, there was an application (Execution Appeal No. 178 of 1922) under Order XXI, Rule 40 that he should be released from custody on Security being given for his re-appearance. The surety-bond executed by the appellants in this case provided that the defendant should be brought before the Court on the 4 of July 1922, and that the sureties would be responsible for bringing him before the Court on that date, and that in case of failure to produce him on the said date they agreed that they themselves, their heirs and other properties should be liable for Rs. 7,200, the balance due under the decree. It does not appeal whether any proceedings took place in Court on the 4th of July 1922, but on the 20 of July 1922 the decree-holder presented a petition asking for warrants against the defendant and the sureties for the balance due under the decree. It appears from the manuscript execution petition that the relief asked for was altered in consequence of an office note put up in the Subordinate Judge's Court, and that the relief as finally asked for was that the sureties be ordered to produce the defendant in Court and that, in default, warrants should be issued against the defendant and the sureties. The decree holder amended the prayer as directed, noting at the same time that the sureties were bound to produce the judgment-debtor in Court in the 4 ci July and that by failure to do so they had rendered themselves liable for the decree amount.

(2.) The present appeal arises out of on application under Section 47 of the Civil Procedure Code, but wrongly described as an application under Section 151, for cancellation of the Court's order directing arrest warrants against the judgment-debtors sureties. The Subordinate Judge held that the order for arrest already passed was a proper order and dismissed the petition.

(3.) Now it is argued, first, that as the Execution Petition No. 60 of 1922 had been treated as closed on the 29 April 1922, the liability of the sureties came to an end. In support of this argument the decision n Lalji Sahoy V/s. Odoya Sunderi Mitra 14 C. 757 : 7 Ind : Dec. (N.S.) 502 has been cited. That was a decision of the Calcutta High Court upon Section 336 of the Civil Procedure Code of 1882. The authority, of this decision has been questioned in Sundara Reddi V/s. Varadharaja Pillai 34 Ind. Cas. 407 : 2 M.W.N. 273, and as it deals with an application under Section 336, which corresponds to Section 55 of the present Code, a case of a judgment-debtor expressing his intention to apply to be declared an insolvent and furnishing security for appearing when called upon, this decision has not much bearing on the question now before us, In the present case, although Execution Petition No. 60 of 1922 was noted as "closed" there it no order dismissing the petition and it must be noted that the security was given in connection with Execution Appeal No. 178 which is not shown as disposed of at any time previous to the order directing warrant to issue against the sureties.