IRANGAUDA SHIDRAMGAUDA PATIL Vs. IRBASAPPA GANGAPPA DALAL

JUDGEMENT

(1.) The only substantial point urged in support of this appeal is that, on the terms of the bond, the appellant is not liable for the amount for which he stood surety. The few facts relating to this appeal are these: While Suit No. 73 of 1919 was pending in the Court of the First Class Subordinate Judge at Dharwar, the following bond was passed by the appellant: In this case, the pleader for the plaintiff applied to the Court to the effect that an inventory had been made through a Commissioner appointed therefor relating to the value of the crops standing on the suit lands and in respect of the moveable property in the house, that the defendants were making away with the property in the house, that some had been already disposed of, that therefore the defendants should be ordered to produce the property before the Court or that in the alternative proper security should be taken from the defendants. Thereupon the Court ordered that the defendants should furnish the security and that in default a Receiver should be appointed. Therefore, I, Irangauda bin Shidramgauda, Patil of Nidgundi Taluka Ron, agree with the Court as follows:-The said defendants would obey the order of the Court and will produce the things mentioned in the inventory in Court or will pay the price thereof. If she failed to do so. I or my lawful heirs or executors will produce Rs. 5,000. To this effect is the surety bond executed on March 29, 1909.

(2.) The Court to which the bond was passed dismissed the plaintiff's suit, but in appeal the plaintiff's claim was allowed, and the Court of appeal ultimately passed a decree for possession of the immovable and moveable properties claimed in the suit with mesne profits. Now in execution of that decree this bond is sought to be enforced against the present appellant. It is urged that this bond must be taken to have been passed under Order 38, Rule 5, that the liability of the surety is limited only to the order made by the trial Court, to which the bond passed, and that as that Court made no order against the defendant for whom he stood surety, his liability under the bond came to an end. In other words, it is urged that the final order made by the Court of appeal is not the order, in pursuance of which, if the moveables were ordered to be produced by the Court, he would be liable for production by the principal for whom he stood surety.

(3.) The point is not free from difficulty, and several cases have been referred to in the course of the argument. But apart from the decisions, to which I shall presently refer, it seems to me that the case must be decided principally on the terms of the bond. If appears from the bond itself that in the suit the Court was prepared to appoint a Receiver in respect of the moveables. But it was by giving security that the defendant was allowed to retain possession of the moveables, and the present appellant stood surety for the defendant for production of the moveables which were allowed to remain in the possession of the defendant.