RAGHAVENDRA GURURAO NAIK Vs. MAHIPAT KRISHNA

JUDGEMENT

(1.) The facts which have given rise to this second appeal are these: On October 8, 1895, the father of defendant No. 2 executed a money bond for Us. 2,000 payable after five years in favour of one Shidhraj Desai. The present plaintiff and defendant No. 1 were sureties in respect of this debt. The principal debtor did not pay the debt nor did he acknowledge his liability to the creditor, and the claim against him became time-barred on October 9, 1903. The sureties, how- ever, paid one rupee as interest first on October 5, 1903, and then on October 1, .1906, Shidhraj sued the present plaintiff an(l defendant No. 1 on the bond in 1909, and obtained a decree against them, as the claim was kept alive by the payment of interest on two occasions before the expiration of the period of limitation. Thereafter ho recovered from the present plaintiff different sums on different occasions. It appears that in respect of certain sums realised from the plaintiff, he had filed suite against defendant No. 1 the surety, and defendant No. 2 as representing the principal debtor. We are not concerned with those suits. In fact it appears from the judgment of the trial Court that one of the suits was pending at the time of the judgment. A sum of Rs. 800 was paid to Shidhraj on September 1, 1915, during the pendency of the application for execution of the decree obtained by Shidhraj against the sureties. The present suit was filed on September 2, 1918, to recover the said sum of Rs. 800 just within three years against defendant No. 1, his co-surety, and defendant No. 2, the son of the principal debtor. Defendant No. 1 did not appear to contest the suit. Defendant No. 2 raised various defences and several issues were raised. The learned trial Judge held that defendant No. 2 was liable for the payment made by the plaintiff in satisfaction of the decree obtained by the original creditor against him in the suit of 1909. It is not necessary for the purposes of this appeal to refer to the various issues in detail. Accordingly a decree was passed for the amount claimed against defendant No. 2, and for a moiety of that amount against defendant No. 1.

(2.) Defendant No. 2 appealed to the District Court, and the learned Assistant Judge, who heard the appeal, came to the same conclusion as the trial Court in respect of the liability of the defendant No. 2 as the principal debtor in respect of the sum paid by the surety in satisfaction of the decree obtained against him by the original creditor, and confirmed the decree of the trial Court. Both the lower Courts have dealt with this cane very carefully.

(3.) In the appeal before us, on behalf of defendant No. 2 it is urged that he is not liable in respect of this sum paid by the surety, that at the date when the suit was filed against the surety in 1909, the claim against the principal debtor had become time-barred long since, that as regards the present plaintiff and the Co-surety, the claim was kept alive by their own acts consisting of the payments of interest on two occasions; that under Section 145 of the Indian Contract Act, the surety is entitled to recover from the principal debtor whatever sum lie has rightfully paid under the guarantee, but no sums which he has paid wrongfully, and that the sum paid under the circumstances of this case must be treated as a sum paid wrongfully within the meaning of the section. There is no reported decision of any High Court directly bearing on this point; but there is a decision of the Punjab Chief Court in Suja V/s. Pahlwan,(1877) P.R. No. 30 of 1878 upon which the appellant has relied.