V T ELAYA PILLAI Vs. AMMUHAMMAD IBRAHIM SAHIB

JUDGEMENT

(1.) C.M.A. No. 389 of 1944: This is an appeal against the decree of the District Judge of South Arcot determining the amount of the liability of the appellant under a security bond executed by him. The material facts are the following. One Muthuswami Jadaya Goundan filed O.S. No. 43 of 1936 in the Court of the District Judge of South Arcot for the recovery of an impartible estate known as Jadaya Goundar Jaghir. The first defendant in the suit was the rival claimant. The second defendant was the first defendant's son and was impleaded pro forma. The third defendant claimed to be a lessee of the forest produce in the Jaghir under a lease granted in 1934 by the previous Jaghirdar for a period of seven years commencing from 16 July, 1936. The suit was decreed and it was held that the plaintiff was entitled to succeed to the estate on the death of the last holder. The lease in favour of the third defendant was held to be not binding on the plaintiff and was consequently set aside. defendants 1 and 3 filed appeal No. 56 of 1939 in this Court. A receiver appointed during the pendency of that appeal paid certain amounts into Court from time to time. In November, 1941 the amount lying in deposit was about Rs. 12,000. The plaintiff applied for payment out of this amount and this Court directed in C.M.P. No. 6942 of 1941 that he may draw the amount upon furnishing security to the satisfaction of the District Court of South Arcot. In pursuance of that order the present appellant executed on the 18 April, 1942 a security bond the material portions of which we shall now refer to. After reciting that about Rs. 12,000 was lying in the Court of the District Judge of South Arcot to the credit of Jadaya Goundar estate the bond mentions that the plaintiff was permitted to withdraw the amount by the order of the High Court in C.M.P. No. 6942 of 1941, that he requested the executant to stand surety for the said amount and that he (the executant) agreed to do so. The bond then goes on to state that he executed the security bond binding himself " in the above manner ". There is a reference to the approval of the draft security bond by the District Judge and then occur the following Clause which must be set out in full: If the appeal, A.S. No. 56 of 1939, against the decree of this Court, pending in the High Court he dismissed and the decree of this Court confirmed, then this security bond will stand cancelled. If, however, the appeal in the High Court be allowed and the decree of this Court set aside, and if this Court directs that the said sum of Rs. 12,000 (twelve thousand), should be brought back into Court, the said Muthuswami Jadaya Goundar will pay it back into Court. In default of his doing so, I will pay the aforesaid amount of Rs. 12,ooo. If the amount is paid in the aforesaid manner, then also this bond shall stand cancelled.

(2.) A.S. No. 56 of 1939 was dismissed by the High Court so far as the first defendant was concerned. The appeal of the third defendant, (second appellant) was, how-ever, allowed and the suit against him was dismissed.

(3.) In pursuance of that decree the third defendant applied for restitution and he was held entitled to a sum of Rs. 5,417-1-0. The plaintiff was directed to pay that sum into Court on or before 29 April, 1944, and in default of such payment, the surety (the present appellant) was directed to pay the amount. On behalf of the appellant the first point taken by his Counsel is that on a construction of the security bond the appeallant is not liable in the events that have happened. It is argued that the security bond contemplated either the allowance of the appeal in its entirety or its dismissal and did not envisage the possibility of a partial allowance of the appeal and that since a contingency which is not provided for in the security bond has now arisen the surety is not liable.