SYED SADECK ABDULLA Vs. MAHOMED ABDULLA HASSANALLI

JUDGEMENT

(1.) This is an application in revision against the order of the Resident at Aden, declining to make a reference to this Court under Section 8 of the Aden Courts Act II of 1864. The petitioner in this ease filed suit No. 31 of 1927 in the Court of the Resident at Aden for a declaration that the surety bond executed by him in suit No. 318 of 1923 should be set aside and for a declaration that the decree in that suit should not be executed against him as a surety. The learned Assistant Resident and Judge at Aden dismissed the suit holding that as no order had been passed under Order XXXVIII, Rule 3, of the Civil Procedure Code, the plaintiff's suit ought to fail. On appeal, the Resident refused to make a reference on the ground that the suit did not lie and therefore an appeal did not lie, and on the merits also he held that the present suit did not lie as an appeal lay from an order under Order XXXVIII, Rule 3, and the suit was barred under Section 47 of the Civil Procedure Code.

(2.) A preliminary objection is taken on behalf of the opponents that this Court cannot interfere in revision under Section 115 of the Civil Procedure Code, and it is urged that the Resident at Aden in not a Court subordinate to the High Court within the mean-rag of Section 115, nor is the High Court a Court of appellate jurisdiction within the meaning of Section 107 of the Government of India Act, It has been held in Abdul Karim V/s. Municipal Officer, Aden (1903) I.L.R. 27 Bom. 575, s.c. 5 Bom. L.R. 562. that, for the purposes of Clause 13 of the Letters Patent, the Court of the Resident at Aden is a Court under the superintendence of the High Court, and the High Court has power to remove a suit from the Court of the Resident and to try and determine the same. A reference was made in that case to the opinion of Phear and Mitter JJ. in In the matter of John Thornson (1870) 6 Beng. L.R. 180. where it was held that a reference was "a modified form of appeal", and also to the case of Bhagwandas V/s. Jedu (1902) 4 Bom. L.R. 970 where it was held that the term "appellate jurisdiction" in Section 15 of the Charter Act should be construed to include the power of revision, Having regard to the preamble to Act II of 1864 and to Section 31 of the said Act, it is clear that the Court at; Aden is subject to the superintendence of this Court. See the decision of the Privy Council in Municipal Officer, Aden V/s. Ismail Hajes (1905) I.L.R. 30 Bom. 246, s.c. 8 Bom. L.R. 4, p. c. The point, however, for consideration in this case has been concluded by the decision in the case of Mhimbai Jamalbhoy V/s. Mariam Binte Abdul (1909) I.L.R. 34 Bom. 267, S.C. 12 Bom L.R. 149 where it was held under similar circumstances that an application for revision under Section 115 of the Civil Procedure Code was maintainable, and that with regard to questions which might arise regarding oases to be stated by the Resident for the decision of the High Court under the provisions of Section 8 of the Aden Courts Act (II of 1864), the Resident's Court was subordinate to the High Court. A doubt was thrown on that decision in a subsequent ruling of this Court in Moses V/s. Meyer . The point, however, decided in that case was that the Court was not competent to entertain an application under Section 115 as the judgment or order complained of was appealable to the Privy Council. The effect, however, of the decision in Bhimbai Jamalbhoy V/s. Mariam Binte Abdul was stated in wide terms. We prefer to follow the decision in Rhimbai Jamalbhay's case and hold that with regard to the questions arising in reference to cases to be stated by the Resident for the decision of the High Court under Section 8 of the Aden Act, the Resident's Court is subordinate to the High Court, and the application for revision under Section 115 would lie against the order of the Resident declining to make a reference under that section.

(3.) The next question is whether, under the circumstances of the present case, we should interfere under Section 115 of the Civil Procedure Code. The surety in this case made four ineffective applications to the trial Judge. The first application was made on March 1, 1924, the second on February 9, 1926, the third on May 11, 1923, and the fourth on July 21, 1926. There were no orders passed except on the second application to the effect that it was dismissed. The learned Assistant Resident and Judge held that as the defendant was not before the Court, the surety bond could not be discharged. He further held that the surety was never discharged and could not be discharged because the defendant never appeared in pursuance of any summons or warrant. The learned Judge failed to understand why the plaintiff did not ask for his discharge when Aref Kharsa was actually before the Court on February 27, 1926. As he did not do so, he had only himself to blame for not having been discharged. It appears clear, therefore, that the remedy of the surety was under Order XXXVIII, Rule 3, to get himself discharged from his obligation flowing from the execution of the surety bond. If the order on the application of February 9, 1926, be considered as an order refusing his application to be discharged the remedy of the surety was by an appeal against that order. If there was no order for his discharge on any of these out applications, it is clear that the surety did not take any effective steps to get himself discharged from his obligation, and the only way recognized under the Code by which he could get himself discharged was by an application under Order XXXVIII, Rule 3. The judgment-debtor has been enabled to go out of the jurisdiction of the Court and evade its processes by virtue of the execution of the surety bond by the plaintiff. We do not think that in this case the decree-holder has taken any undue advantage, or that there was any fraud on the surety. On the other hand, the surety has himself to blame for not taking legal and effective measures for being discharged. We do not think that any injustice has occurred, and the surety is wrongly made liable by his surety bond. There are not, therefore, sufficient grounds, is our opinion, to interfere in the exercsie of our revisional powers.