SATYA NARAIN PRASAD Vs. MAHABIR PRASAD MARWARI

JUDGEMENT

(1.) THE facts of this case are simple and may be shortly stated as follows: THE opposite party obtained a decree in. the Small Cause Court against one Gokhulanand Sahay and had him arrested in execution of the decree. THE petitioners thereupon executed a security bond under's 55, Civil Procedure Code, which provided that they would become liable for the decretal money upon the happening of two events: (1) if the judgment-debtor failed to apply to the District Judge within the period of one month for being adjudicated insolvent and (2) if they (the sureties) failed to produce the judgment-debtor before the Court when ordered to do so. THE judgment-debtor did not apply to the Insolvency Court within the period prescribed; but the sureties did produce him before the Court on being called upon to do so by the Subordinate Judge before whom the execution proceeding was pending. THE Subordinate Judge accordingly discharged the sureties on June 29, 1936; but the decree-holder preferred an appeal against the order of the Subordinate Judge to the District Judge without impleading the sureties as respondents and curiously enough the learned District Judge without hearing them and in their absence set aside the order passed by the learned Subordinate Judge. THE learned Subordinate Judge took up the matter again and on this occasion he held, not without considerable hesitation, that the sureties were liable to pay the decretal amount. THE reason for passing the order is stated by him in these words: I think, though not without hesitation, I should follow the ruling reported in Makhan Lal V/s. Narain Das AIR 1929 All. 377 : 119 Ind. Cas. 500 : Ind. Rul (1929) All. 1028, I therefore, hold that the sureties are liable, etc.

(2.) NOW the view taken in the decision, relied upon by the learned Subordinate Judge is opposed to the decisions of the Madras and Lahore High Courts in Alagammal Achi V/s. Arunachalam Chettiar AIR 1935 Mad. 543 : 156 Ind. Cas. 113 : 7 RM 645 and Shaw Wallace & Co. V/s. Sunder Singh AIR 1930 Lah. 575 : 125 Ind. Cas. 324 : Ind. Rul. (1930) Lah. 396 wherein it has been held that the security bond is to be interpreted according to the conditions expressly mentioned therein, and not independently of them even though it may have been executed under Section 55. Even the decision of the Allahabad High. Court, on which the learned Subordinate Judge has relied Makhan Lal V/s. Narain Das AIR 1929 All. 377 : 119 Ind. Cas. 500 : Ind. Rul (1929) All. 1028 makes it clear that in case the conditions laid down in Section 55 are not fulfilled, the option lies with the Court executing the decree and not with the decree-holder to proceed against the surety under that section or to proceed against the judgment-debtor. Assuming that, this view is correct, the opinion had been exercised by the learned Subordinate Judge in this case in favour of the surety on a previous occasion and the matter could not be re- opened before him. In my opinion the order of the learned Subordinate Judge cannot be upheld as it was without jurisdiction. I would, therefore, allow the application and set aside the order passed by the learned Subordinate Judge. There will be no order as to costs.