SUNDARA REDDI Vs. VARADHARAJA PILLAI

JUDGEMENT

(1.) One Velayudam Pillai was arrested in execution of a decree and produced before the District Munsif of Cuddalore. The judgment-debtor was released under- section 55 (4), Civil Procedure Code, on his undertaking to file an insolvency petition and upon the appellants executing a security bond on 23rd January 1914. The judgment-debtor did not appear within 30 days, nor did he file an insolvency petition. The decree was transferred to the Villupuram Munsif s Court, and on the application of the decree-holder the sureties moveables were attached. The appellants applied for the release of the properties from attachment, and this was ordered on 29th July 1914, the District Munsif being of opinion that the sureties had not undertaken to see that the judgment-debtor would present an insolvency petition within a month of the date of his release but merely to produce him in Court whenever the Court may direct. On 3rd August 1914, a notice was issued to the sureties to produce the judgment-debtor on or before 25th August 1914. They appear to have taken advantage of the presence of the judgment-debtor in Court to point him out on 18th August. The judgment-debtor was, however, allowed to go, in fact, it is said that he ran away" from the Court. The sureties pleaded that they were absolved from their liability as they had produced the judgment-debtor on 18th August. The District Munsif did not accept the plea which was clearly untenable, but at the same time dismissed the execution application, Execution Petition No. 679 of 1914, on the ground that the sureties liability under the bond was confined to their producing the judgment-debtor in connection with the insolvency proceedings. The decree-holder then appealed to the District Court. The District Judge reversed the lower Court s order, holding that the sureties were liable for the judgment-debtor s non-appearance within 30 days and also for the non-production of the judgment-debtor between 8th August and 25th August.

(2.) The following is a translation of the material portion of the security bond: "The plaintiff has got the defendant in the above suit arrested under a warrant for the decree amount and produced him in Court. The said defendant states that he is unable to discharge the said decree-debt and that he is putting in an insolvency petition. On whatever dates the Court may direct the defendant to appear (in Court) in connection with the above matter, the said defendant will appear in Court on all such dates. In the event of the defendant failing so to appear, We shall cause him to appear (in Court). In the event of our failing so to make him appear we shall deposit the said decree amount." We agree with the District Judge that it is to be regretted that the District Munsif should have accepted such a loosely worded security bond, which is not in the terms of Sub-section (4) of Section 55, Civil Procedure Code. Three questions were argued by the learned Advocate-General who appeared for the appellants. He contended (1) that the security bond, not being in accordance with the terms of Section 55 (4), Civil Procedure Code, the sureties cannot be held to be liable; (2) that inasmuch as the judgment-debtor was not called upon to appear before the Court, the ancillary obligation which rested upon the sureties to produce him had not yet arisen; (3) that the execution proceedings having been closed, the sureties were no longer liable.

(3.) We are of opinion that there is no substance in objections (1) and (3) and that Section 145 (c), Civil Procedure Code, which provides that "where any person has become liable as a surety for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon", is applicable. Section 145, Civil Procedure Code, differs in several respects from the corresponding Section 253 of the Code of 1882. The present section applies not only to security bonds for the performance of a decree but the suretyship for the restitution of property taken in execution of a decree and also to bonds for the payment of money and for the fulfilment of any condition under an order of the Court. The terms of Sub-section (c) are very wide and include, we think, a case where security is given for the production of a judgment-debtor, who is arrested in execution of a decree and who is released on furnishing security and on expressing his intention to apply to be declared an insolvent. Section 145, Civil Procedure Code, provides a summary remedy in execution for the realisation of the security in execution to the extent to which the surety has made himself personally liable. In support of his contention that the execution proceedings having been closed the liability of the sureties ceased, the Advocate-General relies on the ruling in Lalji Sahoy v. Odoya Sunderi Mitra 14 C. 757.