B JANG BAHADUR SINGH Vs. BASDEO SINGH

JUDGEMENT

(1.) These four connected appeals arise out of two suits brought by Basdeo Singh and others, appellants in S. A. Nos. 1160 and 1323 of 1932, on foot of two security bonds, one executed by Mt. Manki Kunwar, appellant in S.A. No. 1139 of 1932, on 6 August 1923, and the other by Jung Bahadur Singh and others, appellants in S. A. No. 1133 of 1932, on 5 September 1933. The suits were decreed by the lower Court. The plaintiffs and the defendants were both dissatisfied with the decree passed by the trial Court. Hence four appeals were filed in the Court of the District Judge, who upheld those decrees. The four appeals before us are from the decrees passed in appeal by the District Judge. The circumstances leading to the present litigation are these: Basdeo Singh and others brought two suits for pre-emption against Raj Singh, who was the vendee under two sale-deeds from certain persons. Both these suits were decreed by the trial Court on payment of certain amounts. The vendee preferred one appeal in the Court of the District Judge and another to this Court. Two different Courts of appeal had to be restored to because the two suits had been differently valued. The successful pre-emptors deposited the sums, which they had to pay under the decrees of the Court, on 21 June 1923, and applied for execution of the decrees in their favour. The vendee applied for stay of delivery of possession pending his appeals. Stay was granted on condition of the vendee furnishing security for any loss resulting to the pre-emptors from the order of stay. It does not appear-nor is it material to know-whether the order of stay was passed in both cases by this Court, to which the appeal pending in the Court of the District Judge had been eventually transferred, or the order of stay referred to was in one case passed by the District Judge while the appeal was pending before him and in the other by this Court in the appeal pending in it. It is not in dispute that two security bonds were executed, one on 6 August 1923 by Mt. Manki Kunwar,. the appellant in S.A. No. 1139, and the other on 5 September 1923 by Jung Bahadur Singh and others, appellants in S. A. No. 1133. The two sets of sureties hypothecated certain properties as securities demanded by the Court or Courts.

(2.) The vendee's appeals were eventually dismissed by this Court, and possession was delivered to the pre-emptors on 11 March 1927. Two suits were brought by the pre-emptors on 8 July 1930 for enforcement of the aforesaid security bonds. The plaintiffs claimed mesne profits for three years (1924-26) by sale of the properties hypothecated in the bonds aforesaid. They impleaded, as defendants, the sureties and the vendee Raj Singh. The sureties contested the suits inter alia on the grounds: (1) That the plaintiffs were not entitled to sue on the security bonds; {2) That the remedy sought by the plaintiffs could not be obtained in separate suits and that the same should have been obtained, if at all, in the pre- emption suits; and (3) That as the plaintiffs had allowed their remedy against the vendee, Raj Singh, to become barred by limitation, they were not entitled to enforce the security bonds, as by their own omission to sue the principal debtor, Raj Singh, the sureties were discharged. These defences did not find favour with the trial Court, whose decrees in the two suits were affirmed by the lower appellate Court. The plaintiffs were dissatisfied with the decrees passed by the trial Court so far as the mesne profits decreed to them fell short of the gross rental claimed by them. Their appeals were also dismissed by the lower appellate Court. The sureties have pressed in their appeals all the three grounds on which they contested the plaintiffs claim. The plaintiffs appeals involve consideration of the amount of the mesne profit claimed by them.

(3.) Taking the sureties appeals first the first question which we are called upon to decide, is whether the plaintiffs are entitled to sue on the security bonds. It is pointed out by the sureties learned Counsel that one of the bonds is in favour of the District Judge while the other is in favour of the Registrar of this Court, and that no assignment has been made by the two officers to the plaintiffs of their right to sue on the bonds. It is also argued that the District Judge, as such, could not make any assignment of his right to sue, assuming such right was vested in him. We have carefully considered the stipulations contained in the security bonds; and are of opinion that the consideration involved in the argument indicated above did not arise in these appeals. The two security bonds are substantially identical, except that one of them is in favour of the District Judge and the other in favour of the Registrar of this Court. The executants of the bonds set out the point at issue in the pre-emption appeals and the fact that the vendee Raj Singh had to furnish security in pursuance of the orders of the Courts, in which the appeals were pending. The sureties proceeded to stipulate that they hypothecated properties specified in the bonds to ensure payment of damages and costs to which the pre-emptors might be found to. be entitled. On the face of them the bonds purport to be in favour of the District Judge and the Registrar of this Court respectively. In the end it is declared that the pre-emptors will have a right to enforce the bonds by instituting suits for recovery of damages and costs by sale of the hypothecated property. We think that, having regard to the last stipulation, the plaintiffs are clearly entitled to maintain the suits for enforcing the security bonds. In the absence of a stipulation expressly empowering the plaintiffs to sue, a question might have arisen as to whether the bond executed in favour of the District Judge, as such, can be effectively enforced, and further whether the bonds can be enforced by the plaintiffs, in the absence of deeds of assignment executed in favour of the plaintiffs; but we hold in the circumstances of this case, that the stipulation already referred to entitled the plaintiffs to institute the suits for enforcing the security bonds.