NARSINGH SAHAY Vs. SHEOPARASAN SINGH

JUDGEMENT

(1.) This is an appeal from the order of the Subordinate Judge of Shahabad dismissing an application for the enforcement of a security bond. The appellant obtained a mortgage decree in this Court from which the respondent preferred an appeal to His Majesty in Council. The respondent applied for stay of execution pending the hearing of the appeal, to which the appellant took the objection that the property ought to be brought to sale at once, because if it was not thus brought to sale, he would lose interest which he otherwise might have obtained by lending out the money realized by the sale.

(2.) The direction of this Court was that sale should be stayed on the judgment- debtor's furnishing security for Rs. 7,000 and that a receiver should be appointed to manage the mortgaged property, the whole income of which would be available to the mortgagee if the Privy Council appeal (sic) be dismissed. The appeal to the (sic) Council was in due course dismissed, and the decree-holder applied to the Subordinate Judge for execution of his decree. By his execution petition he claimed the amount which had been decreed by the High Court with interest at the rate specified in the bond up to the date of the preparation of the execution petition, praying that the mortgaged property might be brought to sale.

(3.) He further prayed that the property given in security at the time when the sale was stayed by this High Court should also be brought to sale for the realization of Rs. 7,000. The judgment-debtor objected first, that the security bond for Rs. 7,000 could not be enforced in these proceedings, because the sureties had undertaken no personal liability; and secondly that the decree-holder was entitled to no interest from the date when sale was stayed, because a receiver had then been appointed, and the income of the mortgaged property had been available to the decree-holder. The Subordinate Judge held that the sureties had undertaken no personal liability by the security bond which they had executed when the sale was stayed, and that therefore their hypothecation of the immoveable property could be enforced only by means of a regular suit and not otherwise.