ARUMUGA IRUNGALAR Vs. PACKIRI VELLALA THEVAR

JUDGEMENT

(1.) The plaintiffs filed a suit against defendant 1 for recovery of possession of certain property and for mesne profits. During the pendency of the suit they tiled a petition for the appointment of a receiver to harvest the crops on the land. Respondents 7 and 8 gave security to the extent of a maximum of Rs. 550 with regard to these crops. The suit was dismissed but in appeal was decreed. The petitioner (appellant) put in a petition to execute the security bond. The sureties contended: (1) that the bond was only intended to cover any decree that might be passed by the trial Court; (2) that even if it is operative the appellate decree is not capable of execution. The Court of first instance found both points in the petititioner's favour. The lower appellate Court found both points against the petitioner and he prefers this second appeal.

(2.) Point No. 1. - The material portion of the security bond runs as follows: On the petition presented by the plaintiff in this suit for the appointment of a receiver the Court passed order on 16 January 1921 directing the defendants to furnish security for RS. 550 in respect of the mesne profits of the plots in dispute for the current year. If in accordance therewith decree is passed in this suit in favour of the plaintiffs and the defendants have to pay mesne profits for the current year the defendants shall pay that amount to the plaintiffs; then follows the charge

(3.) Subbarama Ayyar V/s. Subbier is directly in point that such a bond becomes vacated on the suit being dismissed by the trial Court. The samel view has also been taken in Manackjee V/s. B.M.L. Chettiar Firm AIR 1927 Rang though the Bombay High Court appears to take a different view in Irangauda Shidram Gowda V/s. Irbasappa . The Privy Council case in Baj Baghubar Singh V/s. Jai Indra Bahadur Singh AIR 1919 PC 55 was considered in Subbarama Ayyar V/s. Subbier , and distinguished on the terms of the actual bond there. It was also considered in a Full Bench case of this Court in Balaraja Ghettiar V/s. Masilamony Pillai AIR 1930 Mad 514 at p. 349 (of 53 Mad.), in which I delivered the judgment. I have nothing to add to the remarks made in Subbarama Iyer V/s. Subbier , or to-those which I made in the Pull Bench case. In an earlier case of this Court reported in O. Venkatasubba Bao V/s. C. Bosayya AIR 1915 Mad 653, where the terms of the bond were even wider than in the present case, it was held that where sureties offered themselves to the Court of first instance to release property from attachment before judgment and the suit was dismissed, the bond became thereby discharged. This was approved and followed in Subbarama Iyer V/s. Subbier (1), quoted above. Whether or not Irangauda Shidram Gowda V/s. Irbasappa (3) can be distinguished from the present case, the view of this Court is clear. I am bound to follow it.