SANKUNNI VARIAR Vs. VASUDEVAN NAMBUDRIPAD

JUDGEMENT

(1.) In this case some property consisting of machinery and other things belonging to the judgment-debtor was attached and was proclaimed for sale, The sale was adjourned, and the appellants and two others executed a surety bond undertaking to produce the property when called for. This was on the 3 of July, 1924. The sale was posted for 21 November, 1924 and was adjourned to 19 December, 1924 and then to 16 January, 1925 and on each occasion it was adjourned because the decree-holder granted time on receipt of certain sums from the judgment-debtor. The sale was again adjourned to 16 March, 1925 and the sureties failed to produce the property and consequently the sale could not take place. The decree-holder then put in a petition E.P. No. 297 of 1925 to enforce the liability of the sureties by a warrant of arrest. The Subordinate Judge has found that the sureties have committed default and has ordered that if they do not produce the attached articles or their value as per the bond a warrant of arrest will issue. Two of the sureties now appeal against this order and state that although they did not produce the property it was available in the factory close to the Court-house, and that therefore they should not be deemed to have committed default. It is also alleged that in July, 1925, an interim Receiver was appointed to take charge of the judgment-debtor's properties, as he had been declared an insolvent, and that when the sureties applied to the insolvency Court that Court refused to allow them to remove the property. This latter contention is beside the point, because on 16 March, 1925, when the property was not produced, no question of insolvency had arisen, and the sureties were not prevented from producing the property. It does not appear that they even informed the officer conducting the sale that the properties were available close at hand, and even if the pressing machines in the tile factory could not be easily moved the rest of the property was easily transportable. The sureties had therefore no excuse for the non-production and must be deemed to have committed default and forfeited their bond on 16 March, 1925.

(2.) The next question, which is the more important one, is whether the Subordinate Judge had power to proceed against the sureties in execution. The appellants rely on a case reported in Rajah of Venkatagiri V/s. Sura Krishna Reddi in which it was held that the only remedy open to the decree-holder was to get the bond assigned by the Judge and to sue upon it. 1 have looked at the papers in this case and the facts are almost identical with the facts of the present case and if that case is to be followed this appeal must be allowed so far as execution is concerned. In another case Kommareddi Subbareddi V/s. Kollipara Veerayya Tata (1918) 9 L W 476 Sadasiva Aiyar, J. held the view that the bond could not be enforced in execution, whereas Spencer, J., held the contrary view. The view of the latter Judge is also in accordance with the judgment of a single judge of the Allahabad High Court reported in Madha Prasad v. Pearey Lal (1921) 62 I C 719. The, respondent, however, relied chiefly on a decision of the Privy Council reported in Raj Raghubar Singh V/s. Jai Indra Bahadur Singh (1919) I.L.R. 42 A 158 : 38 M L J 302 (P C). The facts in that case are not quite the same as those here, for under the surety bond there under consideration the sureties undertook no personal liability but offered immoveable property as security. It was held that Section 145 could have no application but nevertheless, their Lordships held that the security could be enforced by the Court making an order upon an application to which the sureties are parties. The reason given for this is as follows: It is suggested that they (viz., the sureties) are bound to the Court. But the Court is not a judicial person. It cannot be sued. It cannot take; property and as it cannot take property it cannot assign it. It remains, therefore, that here is an unquestioned liability, and there must be some mode of enforcing it.

(3.) They conclude by saying that it can be enforced by an order of Court to which the sureties are parties. This is certainly authority for the proposition that, although the case does not come within the terms of Section 145, the Court has the inherent power to enforce its bond without recourse to a suit.