M PARAMASIVAM PILLAI Vs. AVRMSPSRAMASAMI CHETTIAR

JUDGEMENT

(1.) The question in this appeal is whether in the circumstances of this case the decree-holder in O.S. No. 42 of 1929, on the file of the Subordinate Judge's Court of Tuticorin can proceed against the first respondent to recover from him the sum of Rs. 1,600 referred to in the surety bond executed by him in 1932. The facts are that O.S. No. 42 of 1929 was a suit upon a mortgage and in that suit at the instance of the mortgagee a receiver had been appointed. There was an appeal by the third defendant against this order appointing the receiver which was numbered as C.M.A. No. 375 of 1931 in the High Court. When the appeal was filed, an application was also filed for stay of further proceedings by the receiver and stay was granted on condition that the third defendant should give security for one year's income from the mortgaged property fixed at a sum of Rs. 1,600. In accordance with that order the third defendant executed a surety bond the terms of which are now in dispute. The actual sentence in which his liability is expressed runs as follows: If the C.M.A. No. 375 of 1931 preferred by me to the High Court against the order appointing receiver, is decided in favour of the said first plaintiff, I shall pay into Court the one year's net income of Rs 1,600-7-4 as aforesaid.

(2.) C.M.A. No. 375 of 1931 was allowed but there was a Letters Patent Appeal against the decision of the learned Judge who decided it and that Letters Patent Appeal was also allowed so that the final decision of the High Court on the question of the validity of the order appointing the receiver was to confirm it. The decree-holder accordingly brought this application before the Court of first instance contending that on a true interpretation of the bond he was entitled to proceed against the surety. The learned Subordinate Judge rejected his application on the authority of two decisions of the Madras High Court. The decree-holder accordingly filed the present appeal.

(3.) The argument of the learned Counsel for the appellant has been reinforced by the citation of a large number of authorities but there is no clear authority which can deal with the facts of the present case and the only certain proposition of law which can be deduced from all the authorities cited is this that each bond must be interpreted according to its own terms. We are of opinion that the terms of this bond are absolutely explicit. The bond definitely says that if a particular appeal (the number of which is given) is decided in favour of the plaintiff, the executant of the bond shall pay the money into Court. We do not find any language in this bond which extends the liability of the surety to the contingency which is not anywhere referred to of there being a second appeal against C.M.A. No. 375 of 1931. It may be, no doubt, that if the parties had drafted this bond more carefully and had thought of every possible eventuality, they would have made it clear that the surety shall be liable or not according to the final decision of the High Court in the matter. But although that might well be said to be the only reasonable conclusion to which the parties could have arrived had they discussed the matter in all its aspects, we have to deal with the bond as it has actually been drafted and if the decree-holder has permitted the surety to sign a bond which does not protect him in all the emergencies in which he intended to be protected, that is his misfortune and a misfortune which we cannot correct.