JAYAPPA LOKAPPA NARSINGANAWAR Vs. SHIVANGOUDA DYAMANGOUDA PATIL

JUDGEMENT

(1.) The plaintiff instituted Suit No. 229 of 1917 in the Court of the Additional First Class Subordinate Judge at Dharwar to recover possession of a share of one-third of certain lands. Defendant No. 5 was the brother of plaintiff and supported plaintiff's claim. The other defendants were members of the same family and it was alleged that defendant No. 6 had been adopted by defendant No 4, the widow of a deceased member named Basvantgouda. The properties in suit were watan properties, and plaintiff and defendant No. 5 claimed to be the nearest heirs under the law applicable to such property. The Court found that plaintiff and defendant No. 5 were the nearest heirs, and that the adoption of defendant No. G was not proved, Consequent upon these findings a decree was made giving plaintiff and defendant No. 5 certain shares in the suit properties. A partition was directed, and an order was made directing an inquiry as to the mesne profits due.

(2.) Against this decree defendants Nos. 2, 4 and 6 appealed to the High Court making plaintiff and defendants Nos. 1 and 5 respondents. An application was made to stay execution of the decree under Order XLI, Rule 5. On this the Court, on December 14, 1920, passed an order in the ordinary form, "Rule and ad interim stay". This implied that security was required from the applicants "for the due performance of such decree or order as may be ultimately binding upon them". Order XLI, Rule 5(3)(c). This order was communicated to the District Judge of Dharwar by this Court's writ, dated December 14, 1920, and in reply the District Judge certified that security had been furnished. The writ refers to the petition of "Basangouda bin Mallangouda in Appeal No. 335 of 1920" and directs that execution be stayed of due security being furnished to the First Class Subordinate Judge. Basangouda bin Mallangouda is defendant No. 6, The return is endorsed on the writ under date January 25, 1921, and certifies that "the appellant petitioner having furnished the requisite security the further proceedings have been stayed". The surety was one Jayappa, now the appellant before us, and the bond executed by him was in the form laid down in Appendix G, No. 2, of the Code of Civil Procedure. Under it he makes himself liable to the extent of Rs. 4,000. On March 10, 1921, the Court made the following order, "Rule absolute, costs costs in the appeal".

(3.) The bond is in the following terms: In the Court of the First Class Subordinate Judge at Dharwar. Shivangouda bin Dyamangouda Patil.... Plaintiff. 1, Marewa wife of Mahalinga Gaudas; 2, Somawa wife of Vibhadra Gauda Patil; 3, Basangouda Mallangouda Patil; [-Defendants. 4, Basawa Gaodfci wife of Mallangouda and others.... J To The First Class Subordinate Judge's Court at Dharwar. In this Jayappa Lokappa Narasingnavar residing at Lokur Taluka Dhavwar states, by this security bond passed for staying the exeoution of the decree, as follows :- In suit No. 229 of 1917 plaintiff Shivangouda Dyamangouda Patil residing at Lokur has filed a suit in this Court, against Marewa, Somawa, Basangouda and Basawa and others. The suit was decided in plaintiff's favour on March 27, 1920, and a decree was passed therein. And defendants No. 2 Somawa and No. 6 Basangouda and Basawa Gadti filed an appeal in the High Court against the said decree. The plaintiff who has got the decree in his favour filed an application for executing the said decree. Defendant has applied for getting the execution stayed and he (awanige) has been ordered to furnish security. I, therefore, voluntarily become a surety to the extent of Rs. 4,000, by mortgaging the property mentioned in the schedule annexed herewith. I hereby agree that in case the decree of the original Court is confirmed in appeal or reversed the said defendant (prativadeyu) will abide by the order and decree of the appellate Court properly. And if he will have to pay anything in accordance with that be will pay the same and in case he fails to do so the amount that will have to be paid accordingly should be recovered from the estate mortgaged by this writing. And if the said property does not cover the amount that will have to be paid I and my legal representatives will be personally liable. For this I have passed this security bond. Dated this day January 8, 1921.