CHANDULAL DALSUKHRAM Vs. JESHANGBHAI CHHOTALAL

JUDGEMENT

(1.) IN this case there was an attachment before judgment and the opponent stood surety under a surety bond for the defendant agreeing with the Court that the defendant should when the Court so directed him produce in Court Es. 2,167-6-0 and costs, or the amount which the Court might direct and that if he failed so to produce it the surety bound himself to pay at the order of the Court such sum as might be ordered by the Court to be paid by the defendant. By reason of the surety bond the defendant was enabled to deal with this property freed from attachment. He died before the hearing of the suit was arrived at in January 1916. The plaintiff at once had his widow substituted as his representative and she is now the defendant in the suit. The surety afterwards applied to the Court that he might be discharged, that his surety bond should be cancelled and the Court ordered that the surety should be discharged, being of opinion that prima facie on the defendant being dead it is beyond the power of a Court to order him to pay anything and when this cannot be done, no obligation would attach on the surety for his turn of payment would only come on the default of the original defendant in making the payment. That, however, is not correct, for the cause of action survives against the representative of the defendant and the representative of the defendant has been brought on the record and will if the plaintiff s case is tried and succeeds be liable to satisfy the plaintiff s claim out of the assets of the deceased. The rulings followed by the learned Judge, Krishnan Nayar v. Ittinan Nayar (1901) I.L.R. 24 Mad. 637, which was a case of a guarantee for the production of the person of the defendant and Mohip Narain v. F.A. Shaw (1876) 25 W.R. 250, which was upon its true construction a guarantee for only a limited period, are not in point in connection with the facts of this case. The liability of the surety cannot be determined until the time for execution has arrived. Section 145 of the Civil Procedure Code provides that "where any person has become liable as 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... the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees and such person shall, for the purposes of appeal, be deemed a party within the meaning of Section 47".

(2.) IT is in connection with this provision of the Civil Procedure Code that the question arises whether we ought not to interfere under Section 115 of the Civil Procedure Code on the ground that the Court has committed a material irregularity in the exercise of its jurisdiction. The manner in which the liability of the surety is to be enforced is specified in Section 145 and it has to be enforced at a particular stage of the proceedings. The proceedings had not come to an end because they have been revived by the substitution of the widow of the defendant and the stage has not been reached at which the liability of the surety can be decided. In my opinion, therefore, the order of the Court discharging the surety is altogether premature and should be set aside. The surety must pay the costs of these proceedings. Heaton J. I agree with the order proposed. The result stated is necessarily arrived at whether we take the view that there has been want of jurisdiction or a serious irregularity in the exercise of jurisdiction. IT seems to me that there are reasons of considerable cogency which point to a want of juris-diction, but as the result remains unaffected, whether it is attributed to that ground or to a serious irregularity in the exercise of jurisdiction, it does not seem to me very profitable to discuss which of the views is the one which ought to prevail in this case.