NARAYAN GANPATBHAT Vs. TIMMAYA SUBHAYA

JUDGEMENT

(1.) Respondent No. 2 had before the passing of the decree in an original suit, become liable as surety for the due performance of part of the decree. The decree in the original suit was passed in January 1893. The first Darkhast application which was made to execute the decree under Section 253, Civil Procedure Code, as against the surety was in 1902.

(2.) The appellant seeks to take advantage of the previous application for execution made as against the judgment-debtor in order to prevent the bar of limitation. Art. 179, Expln. 1, para 2, sets out that "where the decree or order has been passed jointly as against more persons than one, the ap-plication if made against any one or more of them, or against his or their representatives, shall take effect against them all. " It has been argued that although the decree in question was not in fact passed jointly against the judgment-debtor and the surety, the appellant should be allowed to take advantage of this provision and to treat the decree as passed jointly as against the judgment-debtor and the surety, because under Section 253 there becomes established a statutory joint liability on his part. In support of that contention the case of Kusaji V/s. Vinayak (1898) I.L.R. 23 Bom. 478 was cited, and it is contended that in that decision the decree against the judgment-debtor was treated as a joint decree against the judgment-debtor and the surety. But it is clear on referring to that case, that the judgment expressly describes as assumption the proposition that the surety was to be treated as a party to the suit, bound so far as surety for its due performance; and that case does not decide, that where there is joint liability with the judgment- debtor to be deduced from the decree and surety bond and Section 253 Civil Procedure Code combined, there the original decree must be treated as one "passed jointly" against the judgment-debtor and the surety. The words of the explanation to Art. 179, already read, appear to be plain : they refer to the decree which is "passed jointly" against more persons than one, and do not mean as far as we understand them, a decree where a joint liability may be deduced, by combining the surety bond and the provisions of Section 253, with the decree in dispute.

(3.) The appellant is thus not entitled to take advantage of the previous application for execution of the decree, which he made against the judgment-debtor.