VYASRAO HANMANTRAO Vs. RAMCHANDRA HANMANT

JUDGEMENT

(1.) This second appeal arises out of darkhast proceedings. Five persons obtained a decree in 1928 for possession and mesne profits in the Court of the Joint Subordinate Judge of Bijapur against certain judgment-debtors. The judgment-debtors appealed to the District Court and applied for stay of execution Under Order XLI, Rule 5, of the Civil P. C.. Stay was granted on the present respondent's standing surety for the due satisfaction of the decree by the judgment-debtors in case the decree was confirmed or varied by the appellate Court. The decree was confirmed on appeal. The decree-holders filed three darkhasts in 1930, 1932 and 1935 in none of which execution was sought against the surety. In the present darkhast filed in 1939 execution is sought against the legal representatives of defendant No, X and the surety respondent. The main question raised was whether the present darkhast was in time against the surety. The trial Court came to the conclusion that as no darkhast had been filed against the surety before, and as he could not be treated as a joint judgment-debtor along with the other defendants, as held in Narayan V/s. Timmaya (1906) I.L.R. 31 Bom. 50 the present darkhast was not in time as against him. This view is opposed to the view taken by the High Courts of Madras, Lucknow, Allahabad and Lahore, a view which the learned Subordinate Judge thought to be more reasonable and equitable, but being bound by the Bombay decision in Narayan V/s. Timmaya he held in favour of the surety and dismissed the darkhast with costs as against him. The decree-holders appealed to the District Court, and the appeal was dismissed by the District Judge relying on Narayan V/s. Timmaya, which was followed in Yusuf Ali V/s. Papa Miya (1923) I.L.R. 47 Bom. 778

(2.) Mr. Hungund on behalf of the appellant-decree-holders has relied on the provisions of Section 145 of the Civil P. C. and Section 128 of the Indian Contract Act and contended that though the surety is not in the position of a joint judgment-debtor within the meaning of Explanation I to Art. 182 of the first schedule to the Indian Limitation Act, the previous applications for execution save limitation as against the surety under Clause (5) of the said article, as held in Badr-ud-din V/s. Muhammad Hafiz (1922) I.L.R. 44 All. 743 and Gangaraju V/s. Subbayya (1934) I.L.R. 58 Mad. 276 and that Narayan V/s. Timmaya can be distinguished from the present case. Alternatively, he has argued that Art. 182 does not apply, the obligation of the surety arising under Section 128 of the Indian Contract Act which can be enforced (in what manner he has not exactly specified) under the provisions of Section 145 of the Civil Procedure Code. Mr. Murdeshwar on behalf of the respondent surety relies on Narayan V/s. Timmaya and certain decisions of the Rangoon, Patna and Calcutta High Courts which have followed that case and contends that that authority is binding for the decision on the point under consideration. He has further contended that the scope of Art. 182(5) of the Indian Limitation Act is not wider than that of Explanation I thereto and that if the said Explanation does not cover the case of a surety, the surety is not also1 governed by Clause (5) of Art. 182. The second paragraph of Explanation I to that article reads thus: Where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject-matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against. But, where the decree or order has been passed jointly against more persons than one, the application, if made, against any one or more of them or against his or their representatives, shall take effect against them all.

(3.) The case of Narayan V/s. Timmaya was decided under the old Code of 1882 and the facts in that case were that the decree-holder Narayan had brought a suit against one Timmaya and during the pendency of the suit attached a debt due to Timmaya from one Dajiba, the attachment being subsequently raised upon one Narasinha's giving surety before the decree for payment of the amount of the said debt into Court if so ordered. After Narayan had obtained a decree against Timmaya, he filed a darkhast to execute his decree against the judgment-debtor alone, and thereafter filed several other similar darkhasts all within the time allowed. Eight or nine years after the decree he sought to; make the surety liable under the decree by filing a darkhast against him and against the judgment-debtor. The trial Court dismissed the darkhast as time-barred against the surety and this order was confirmed on appeal by the District Judge. In the second appeal filed in the High Court it was contended1 that the surety could be proceeded against under Section 253 of the Civil P. C. of 1882 (corresponding to the present Section 145) as the decree should be held to be a joint decree passed against both the judgment-debtor and the surety. It was on this one ground that it was contended that any step-in-aid of execution against the judgment-debtor would operate to keep alive the decree against the surety also. This contention was negatived and it was held that where there was a joint liability of the surety with the judgment-debtor to be deduced from the decree, the surety bond and Section 253 of the Civil P. C. read together, the original decree cannot be treated as one "passed jointly" against the judgment- debtor and the surety within the meaning of Explanation I to Art. 179 of the Indian Limitation Act (corresponding to Explanation I to the present Art. 182). Accordingly the appeal was dismissed. Section 253 of the Code of 1882 applied only to the case of a person who stood surety before the passing of the decree. It was, therefore, more restricted in its scope than the present Section 145, though the underlying principle in both is the same. Narayan V/s. Timmaya Was followed in Yusuf Ali V/s. Papa Miya, where there was no further discussion of the question involved. That case was also followed in K.S.E. Mohamed Cassim v Jamila Bee Bee (1928) I.L.R. 6 Ran. 334, in which two persons had signed a bond in an administration suit for the sum of Rs. 15,000 to be paid by them whenever ordered by the Court and upon default by the defendant in paying into Court such sum of money as he might be required to pay in the suit by the Court. The plaintiff having obtained a decree against the defendant applied for execution against him, but she could not execute the decree and subsequently she applied for a notice calling upon the defendant to pay the decretal amount in Court. This application also proved infructuous and the plaintiff then applied for notice against the sureties calling upon them to pay the sum of Rs. 15,000 in Court, They resisted the claim inter alia on the ground of limitation. The District-Court held that limitation was saved by the previous application of the plaintiff. The order of the District Court was reversed by the High Court on the point of limitation. On that point their Lordships followed Narayan V/s. Timmaya without referring to any other case and they remarked : "So far as we are aware that decision has never been overruled and we accept it as good law."