ABDUL ALI Vs. MT. MANBI

JUDGEMENT

(1.) 1. The facts of the case so far as they are relevant for the decision of this application for revision are these : Mt. Sugrabi filed Suit No. 184 of 1922 in the Court of Sub-Judge, Jubbulpore, for possession of her mother's half-share of a house against Wahiuddin and Mt. Piran, the brother and sister of her mother, and obtained a preliminary decree. Before the decree for partition was made final, she sold her interest in it to Mt. Bashiran Bi. It was found inconvenient to partition the house by metes and bounds and on the Commissioner's recommendation it was sold by public auction, the sale proceeds falling due to Mt. Sugrabi's share being Rs. 715 and costs. Mt. Bashiran Bi's name was brought on the record in place of Mt. Sugrabi and it was consequently in the former's, name that the final decree was passed on 7th December 1923. Before the passing of this final decree, Mt. Hiran and six others brought Suit No. 396 of 1923 against Mt. Sugrabi for half the share of the latter's mother in the said house as heirs. On 21st December 1923 they moved this Court for attachment of the amount which had fallen to Mt. Sugrabi's. share and this was allowed subject to the condition that in case Mt. Bashiran Bi desired to withdraw it, she could do so on furnishing solvent security. She furnished the security of her husband, the present appellant on 22nd December 1923 and ultimately withdrew the amount on 2nd January 1924. On 5th September 1924, the claim of all the plaintiffs in Suit No. 396 of 1923, except two, who were defendants in the former suit, was decreed for Rs. 255-5-6 and costs Rs. 43-12-0. The surety was then ordered to deposit the amount which he failed to do and the Court proceeded to enforce the terms of the security bond against him. His objections failed in the Courts below and he now files the present application for revision.

(2.) THE first ground urged before me is that the applicant is not a surety within the meaning of Section 145, Civil P.C. It is contended that Mt. Bashiran Bi was not a party to Suit No. 396 of 1923 and, therefore, no security could be demanded from her under the section. It is true that Mt. Bashiran Bi's name was not brought. On the record as a defendant in Suit No. 396 of 1923. On this ground, however, I am unable to accept the contention that the surety is not one within that section. The applicant stood surety for Mt. Bashiran Bi who is admittedly the successor-in-interest of Mt. Sugrabi. in respect of the amount regarding which the prohibitory order was issued under Rule 7, Order 38 read with Rule 52, Order 21, Civil P.C. The interest which she purchased from Mt. Sugrabi was the subject-matter of dispute in the later suit brought by Mt. Manbi and others and it was in this suit that she made an application for permission to withdraw the amount attached and furnished security. She was, therefore, virtually a party to the suit, Neither the Court nor the plaintiffs, however, took care to see that she was formally added as a defendant in the suit. She too did not apply to be made a defendant. This omission, does not, in my opinion, affect the liability of the surety under Section 145, Civil P.C. The requirement that in order that a surety may be regarded as one under Section 145, Civil P.C., he must be a surety for a party to the suit, includes, in my opinion, a suretyior a successor-in-interest of a party to the suit who remained to be brought on the record as a party along with the one to whose interests he succeeds.

(3.) THE third ground taken before me was not taken in the lower Court and cannot, therefore, be allowed to be pressed here.