KANUPARTHI HANUMANTHA RAO Vs. KOTTAPALLI VENKATAKRISHNAYYA

JUDGEMENT

(1.) The appellant got a decree on the 1 March, 1917, which was modified in appeal on the 8 November, 1917. The decree was against three defendants. Appellant applied for the arrest of the 1 and 3 defendants in that suit. The 1st defendant was arrested and brought before the Court. He said he was going to file an insolvency petition and on this one Kothapalli Venkata Subbayya, the father of the present respondents, executed a surety bond on the 23 April, 1919, which was accepted by the Court. The 1 defendant in that suit was released from arrest. No insolvency petition was filed by the judgment-debtor within the time allowed, one month. The appellant filed E.P. No. 656 of 1919 against the surety on the 29 July, 1919, and the surety produced the judgment-debtor in Court and that execution petition was dismissed. Later the decree-holder filed E.P. No. 20 of 1920 on the 3 January, 1920, against the surety. The latter contended that the bond was only for the appearance of the judgment-debtor and that he was not liable. The surety was ordered to be arrested on the 14 February, 1920, and he preferred an appeal, A.S. No. 212 of 1920 on the file of the District Court of Guntur. The appeal was dismissed on the 31 August, 1920. Afterwards the surety paid Rs. 300 towards the decree debt. He then died. The decree-holder then filed E.P. No. 216 of 1922 on the 2nd March, 1922, against the surety's sons, the present respondents. This was dismissed for want of batta. The present execution petition, E.P. No. 480 of 1926, was filed on the 9 June, 1926, against the sons. The defence of the latter is that they are not liable for their father's debt. The learned District Munsif overruled their contention and ordered their property to be attached. On appeal to the Subordinate Judge he held that the suretyship was for appearance or assurance and so the sons are not liable. The decree-holder prefers this second appeal.

(2.) The chief difficulty in the present case has arisen from the extraordinarily defective nature of the bond which it is surprising that any Court should ever have accepted. It runs thus: Surety Khat filed by Kothapalli Venkatasubbiah, son of Venkata Krish- niah, the surety on behalf of 1 defendant: 1. When the 1 defendant in the above suit was brought into Court in pursuance of a warrant of arrest in execution of the decree, the Court expressed the opinion that in case sufficient security is offered, the Court would grant time to the 1 defendant to file an insolvency petition. I have agreed to be surety (to be liable as surety) in case the 1st defendant does not file an insolvency petition within the time allowed by the Court and for producing the 1 defendant whenever the Court requires. I have, in the village of Cherukuru, lands and houses of the value of Rs. 10,000. I have not made any kind of alienations of my property in favour of anybody. I, therefore, pray that the Court may be pleased to release the 1st defendant on my surety in order to enable him to file an Insolvency Petition.

(3.) The astonishing thing about this bond is that the surety does not bind himself to do anything in case of default. The essence of a bond is that in case of default the surety undertakes to pay some money or do something else. As far as can be learnt, the defence which the original surety put up against being held liable under the bond was quite an untenable one, namely, that he only undertook to produce the judgment-debtor and did not undertake that the latter should file an insolvency petition. He might, it appears to me, have put forward a much sounder defence that he incurred no liability at all under the bond. In fact, most of the arguments that have been addressed to me to show that the sons are not liable under the bond, because it does not undertake to pay a sum of money, but only undertakes to do something which may in the end render the surety liable to have to pay money, are equally arguments which might have been advanced on behalf of the surety himself. It is perfectly clear that if the surety was not liable on the bond, as it stood, he could not be liable on anything outside the bond. In connection with this the learned Subordinate Judge has discussed the whole matter very carefully in paragraph 6 of his judgment. With much of what he says I agree but with a portion of it I disagree. He says: There is not a word in it that he was standing as surety for payment of the money lent to and decreed against the 1 defendant in case of default of payment by the latter of such amount within the specified time.