(MUTHYALA) VENKOBANNA Vs. FIRM OF MYACHAND-VENICHAND

JUDGEMENT

(1.) Appellant stood surety for a judgment-debtor under Section 55(4). Civil P.C. The judgment-debtor filed his insolvency petition one day after the prescribed month. The District Judge held that the Court has no power to excuse the delay and ordered execution to preceed against the surety. Hence this appeal.

(2.) I agree with the lower appellate Court that where the Code prescribes one month the Court cannot grant a longer period. Even if it has such discretion of. Abdul Hussein Essufalli V/s. D.J. Mistri & Co. A.I.R. 1922 Bom. 340 I should not exercise it in this case, for there was no need for the judgment-debtor to postpone filing his petition till the last moment.

(3.) It is then urged that under Section 55(4) Civil P.C. if the judgment-debtor fails to present his petition, he must be called upon to appear and only upon his failure to comply with that summons, is the surety liable. I find no warrant for this interpretation. The surety undertakes that the judgment-debtor will apply to be declared an insolvent and that he will appear when called upon in any proceeding upon the application or upon the decree, which certainly is not an undertaking simply that he will appear when called upon the decree.