NAMDEO GOVIND Vs. SHRIHARI LAXMAN

JUDGEMENT

(1.) ONE Shri Hari filed civil Suit No. 7 of 1931 in the Court of the Additional District Judge, Chanda, against Namdeo, the appellant before us, for possession of certain deosthan properties. The first Court decreed the claim, and the defeated Namdeo preferred an appeal in the Court of the Judicial Commissioner and applied for stay of execution of the decree that was passed in favour of Shri Hari. The execution was stayed. Later on, Shri Hari moved the Court to permit him to execute the decree, and stated that he would furnish security; and the Court ordered on 17-1-1935 as under: I see no sufficient reason for continuing the stay of execution in favour of the appellant, but I direct that the respondent as a condition of executing his decree must furnish security for Rs. 5000 for the due performance of the decree that may ultimately be passed by this Court.

(2.) KRISHNAJI , respondent 2 in the present case, stood surety for respondent Shri Hari and executed a security bond dated 5-2-1935. We shall refer to the terms of the bond later. The appellate Court Set aside the decree of the trial Court, and Shri Hari's claim was dismissed with costs. Thereafter Namdeo applied for execution of the decree and obtained possession of the property that had been taken possession of by Shri Hari. There is no dispute between the parties that Namdeo obtained possession of the property which had been taken possession of by Shri Hari. Namdeo, however, applied for restitution under Section 144, Civil P.C., and his application was registered as Miscellaneous Judicial case No. 3 of 1937; and the Court came to the conclusion that Namdeo was entitled to recover Rs. 1016-3-6 and Rs. 20-12-0 (costs) from Shri Hari, and passed an order to that effect on 9-10-1939. Namdeo wanted that the Court should pass an order against Krishnaji under Section 144, Civil P.C., but the Court declined and stated that no order could be passed against him and that if Krishnaji was in any way liable for execution of the order passed under Section 144, the remedy of Namdeo was to apply under Section 145, Civil P.C., separately. Namdeo thereafter filed an application under Section 145, Civil P.C., asking for execution of the order for mesne profits as against Krishnaji, the surety. Krishnaji thereupon stated that under the terms of the security bond given by him he had never undertaken responsibility for the mesne profits. He contended that under the terms of the security bond executed by him on 5-2-1935 he had undertaken to see that the property of which Shri Hari had taken possession of was restored to Namdeo in case the decree of the trial Court was reversed, and inasmuch as the property taken possession of by Shri Hari was restored back to Namdeo, as certified by him to the Court on 14-2-1937, the surety was discharged. The liability of the surety, according to him, was to arise only if Shri Hari failed to restore the property to Namdeo as per terms of the appellate decree; and he therefore contended that the order under Section 144, Civil P.C., could not be executed against him. Namdeo contended that in the security bond Krishnaji had stipulated that in case there is any kind of misappropriation in the Wahiwat of the above deosthans or their properties by the plaintiff till the decision of the above appeal and the above decree is set aside by the appellate Court, then (the plaintiff) shall rest in the defendant's possession the properties which he has got possession of and in case he fails to do so then, I as surety, will pay Rs. 5000 from my own pocket, that is, in case the properties are not restituted I will be responsible for the above Rs. 5000 or I will fully comply with such order as the Court might pass in respect of this'.

(3.) IT may be noted that in the suit filed by the plaintiff Shri Hari against Namdeo, mesne profits were not claimed; only possession of property was claimed. When the appellate Court reversed the decree of the trial Court it ordered the plaintiff Shri Hari to place Namdeo in possession of the properties in dispute. Mesne profits were thus no part of the claim. It is true that inasmuch as possession had been taken by Shri Hari in the meantime, Namdeo became entitled, as a result of the reversal of the decree of the trial Court, to restitution under Section 144, Civil P.C., and was therefore entitled to mesne profits which Shri Hari had obtained in the meantime till Namdeo was put in possession. But that was a proceeding as between Namdeo and Shri Hari; the surety when he accepted the suretyship for the performance of the decree that would be eventually passed was not standing surety for the mesne profits unless Shri Hari insisted on it before the appellate Court and the surety consented. This was a security bond obtained from Krishnaji under Order 41, Rule 6, Civil P.C. Order 41, Rule 6 so far as it is applicable to the facts of the present case, is as under: (1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security.