AMULYA RATAN Vs. PROSAD CHANDRA KAR

JUDGEMENT

(1.) This appeal is on behalf of the decree-holder and arises out of proceedings started under Section 145, Civil P. C., against the respondent, a surety. The appellant instituted a suit, in the year 1929 on a promissory note against two persons, Krishna Chandra Roy and Hiralal Roy. The claim was laid at Rs. 759-6-0 in the plaint. He thereafter applied for attachment before judgment of a motor lorry belonging to the said defendants. On 13 November 1929 the Court issued on them the Roys, a notice to show cause why the said motor lorry should not be attached before judgment or they should not furnish security to the extent of Rs. 860 to cover the decree, if any, that may be passed against them. The said defendants appeared and offered to furnish security. They proposed the respondent and another person as sureties and the respondent and another person agreed to stand as sureties. They, the proposed sureties, executed in favour of the Court a surety bond dated 30 November 1929. The bond recites the notice dated 13 November 1929, issued on the defendants, and the fact that the Court had allowed the defendants to furnish security. Then the bond states that the executants make themselves personally liable to the extent of Rs. 860, that is, for the amount that might be decreed against the defendants, and the sureties promise to pay the same in case the decretal amount be not realised from the judgment-debtors. The Court on a favourable report from the Sheristadar as to the solvency of the respondent and the other co- executant, accepted them as sureties and withdrew the order for attachment before judgment. On 4 June 1930, the suit was decreed in full against the defendants. The appellant first executed his decree against the principal judgment-debtors and attached the lorry which was sold by the Court in execution. It fetched Rs. 100 only at the Court sale.

(2.) The appellant could not realise anything more from the principal judgment-debtors who have been adjudicated insolvents on their own application. The appellant then applied for proceeding against the respondent, one of the sureties. The substantial objection raised by the respondent is that the Court went beyond jurisdiction in asking for security for the decretal amount under the provisions of Order 38, Rule 5, Civil P. C., and as the bond executed has gone beyond the terms of the said rule it cannot be enforced in execution proceedings. This objection was overruled by the learned Munsif who allowed execution to proceed against the respondent. The learned District Judge on appeal, however, has accepted the said objection. He has further held that if the bond is to be regarded as one for the production in Court of the lorry or its value in cash, for which purpose only a bond could be taken under the provisions of Order 38, Rule 5, there was no breach of the bond, as the lorry was actually brought in Court under the process of the Court and ultimately sold. He accordingly dismissed the execution. Against this order passed by the learned District Judge the decree-holder has preferred this appeal. I do not follow the last mentioned reasons of the learned District Judge. If the bond is not for the production of the lorry or its value in Court, I do not see how it can be regarded as such. In proceeding in the aforesaid manner the learned District Judge in my view has proceeded upon a hypothetical case. He cannot make a new bond for the parties. The bond contains only one undertaking by the sureties, namely to pay the decretal amount to the decree-holder in a certain contingency, and the only question is whether the said undertaking can be enforced in execution.

(3.) The bond in its express terms is for the performance of a prospective decree that may be passed eventually against the defendants, Krishna Chandra and Hiralal Roy, and the sureties have by the terms of of the security bond made themselves personally liable to the extent of Rs. 860. The case prima facie falls within Section 145 of the Code and the appellant has the prima facie right to enforce his remedies against the respondent in execution proceedings. It is said, however, that the surety bond is void being taken by the Court in excess of its powers. The notice of the Court issued on 13 November 1929 on the defendants was also to show cause why they should not furnish security to the extent of Rs. 860 which amount was estimated to cover .... the amount of the decree. The sureties undertook to pay the amount of the decree that may eventually be passed against the defendants to the extent of Rs. 860. The figure was fixed at Rs. 860 apparently on the basis that the claim being laid at Rs. 759-6-0, the decree including costs could not exceed that amount. The order for attachment before judgment was withdrawn as the respondent and another person stood sureties and gave an undertaking to pay the amount of the decree that may be passed eventually in case the defendants could not pay. There was accordingly good consideration for the bond. It is however argued that the Court can only demand security from the defendants under Order 38, Rule 5 for the production in Court of the property sought to be attached or its value, and to place it at the disposal of the Court when called upon, and it is said that when in the notice it made a demand on the defendants to furnish security for the estimated amount of the decree that may eventually be passed, it acted beyond its powers and without jurisdiction and the bond in question cannot be enforced. Order 38, Rule 5 no doubt contemplates security for the production in Court of the property sought to be attached before judgment or its value at a future time when called upon and the amount of the security demanded should ordinarily be commensurate with the value of the property sought to be attached, but the object of the legislature for providing for attachments before judgment is to secure the prospective decree- holder in matter of realisation of the money that may be eventually found by the Court to be due to him. Every act done by a Court in contravention of the provisions of a statute is not necessarily beyond jurisdiction or a nullity.