D K MOHAMMAD EHIYA SAHIB Vs. RMPVMVALLIAPPA CHETTIAR

JUDGEMENT

(1.) In this appeal the first defendant is the appellant. There is also a Memorandum of Cross Objections filed by the plaintiff-respondent. The suit, O.S. No. 8 of 1930, in the Court of the District Judge of Ramnad, Madura, was upon a security bond in favour of the District Judge of Ramnad at Madura, registered on the 22nd February, 1923. The appeal is against the decree of the trial Court making the first defendant liable to pay into Court the sum of Rs. 17,367-14- 7. The other defendants are concerned as interested in the property charged with the payment of a sum which may become liable, on a final deeree being passed, to be sold should default be made in the payment of the aforesaid sum. The decree thus is a preliminary decree for the payment of a sum of money by a certain time, and the preliminary decree will be followed by a final decree for sale of the charged property if the sum is not paid. The appellant in this appeal urges that his liability is nothing. The cross-objections is filed by the plaintiff claiming that the liability should be more than Rs. 17,367-14-7. The increase claimed in the Memorandum of cross-objections is Rs. 516-15-9 and is due to the fact that the learned trial Judge has not allowed the full Rs, 13,500 for which the security bond was given but that sum less Rs. 516- 15-9, Rs. 17,367-14-7 being made up of Rs. 12,983-0-3 plus interest and costs. If the appeal succeeds the Memorandum of cross-objections fails.

(2.) The necessary history leading up to the giving of the security bond can be shortly stated. There was an Original Suit No. 1 of 1927 brought by seven plaintiffs against three defendants, of whom one defendant was as a result of agreement between the parties appointed receiver. The said one defendant was D.K. Syed Ibrahim Sahib. The giver of the security bond was his brother D.K. Muhamad Ehiya Sahib who was not a party to the action. The terms of the compromise were incorporated in a consent order passed on the 10 February, 1928 by the High Court (that was received in the District Court, Ramnad, on the 16 February, 1928) whereby it was ordered, (1) that the first defendant be appointed receiver on his giving independent security to the satisfaction of the District Court of Ramnad for Rs. 13,500 within a fortnight from the date of receipt of this order by the said District Court. and (2) that the defendants do guarantee the payment of Rs. 13,500 every year to the plaintiffs from the date of this order till the disposal of the suit O.S. No. 1 of 1927, as the income of every year.

(3.) Then it required the defendants to pay into Court every six months Rs. 6750. Then it is provided that the plaintiffs when it is paid in may draw it out and credit it for interest on the amount sued for. Then in paragraph 5 it is provided, that, if the defendants commit default in the performance of any of the above conditions, the plaintiffs do have another person appointed as Receiver of the properties in place of the first defendant aforesaid without any objection by the defendants.