NAGESHAR PRASAD Vs. GUDRI LAL NARAIN DAS

JUDGEMENT

(1.) The respondents, the firm Gulzari Lal-Narain Das, obtained simple decree against one Raghunath Prasad on 26 April 1926. In execution thereof Raghunath Prasad was arrested on 20 April 1929. On this date Raghunath filed an application in the Court of the Munsif of Rasra, in which he stated that it was his intention to apply to be adjudged insolvent and in respect whereof he craved his release. The Court ordered his release and stayed execution proceedings on condition that he furnished security under Section 55(4), Civil P.C. The judgment- debtor furnished the appellant Nageshar Prasad as surety. The latter executed a surety bond under which he undertook (1) that the judgment-debtor would file an insolvency application in the Court of the District Judge, and (2) that he as-surety would produce the judgment-debtor in the Court on the date to be-fixed by the Court. The date fixed, was 21 May. 1929. On 7 May the-application to be declared an insolvent-was filed by the judgment-debtor. On 21 May the judgment-debtor was produced in Court. On 23 May the appellant applied to have his surety bond-cancelled in respect that he had discharged the obligations undertaken by him thereunder. Parties were heard upon this application on the same day, namely, 3 May, the Court passed, an order discharging the appellant.

(2.) The insolvency application of the-judgment-debtor was eventually rejected, some time after the surety had been discharged. Thereupon the decree-holder applied on 10 July 1930, for art, order that the appellant be ordained, to produce the judgment-debtor and. in default thereof that execution should, be enforceable against the appellant. As the surety-bond has been cancelled . by the order of 23 May 1929, the-respondent filed a further application! on 28 July in which he prayed that this order be set aside by the Court, in the exercise of its inherent jurisdiction reserved to it by Section 151, Civil P.C. On 28 July 1930, it was not open to the respondent to challenge the order of May 1929, by way of appeal the statutory period for appeal having expired. The learned Munsif held that it was not open to the-Court to disturb the order of 2 3rd. May 1929, as the respondent had neglected to avail himself of his statutory-remedy. Having failed to take advantage of this statutory remedy, it was-not open to respondent to invoke the provisions of Section 151. He accordingly dismissed the respondent's application, against the appellant. The learned Additional Subordinate Judge in the lower-appellate Court has held that the order of 23 May 1929, discharging: surety is null and void, and he has. accordingly allowed the respondent s-claim.

(3.) The argument that the respondent was entitled under Section 151 to have the order of 23 May 1929 reviewed and set aside was not pressed before us in appeal. It was contended at some i length that the order inasmuch as it; was not made in an application against: the surety by the decree-holder was not a decree within the meaning of the Civil P. C.. It was not appealable and the remedy of appeal was therefore not available to the respondent. With this argument we are in agreement and in this connexion we refer to two rulings, viz., Ram Kishun V/s. Lalta Singh and Ramanathan Pilial V/s. Doraiswami Aiyangar A.I.R 1920 Mad 75. These two rulings clearly support the respondent's contention in this connexion. It was admitted however that the respondent had a remedy by way of revision. It is well established that where a party considers a decree or order of the Court unjust and has neglected to avail himself of the remedy provided by the Civil P. C., e. g., his right of appeal or of application in revision, it is not open to him subsequently to invite the Court by virtue of its inherent jurisdiction reserved by Section 151 to disturb that decree or order which he has failed to challenge in the statutory manner and within the statutory period. But as already remarked this point was given up by the respondent in the course of the hearing.