KAMBHAM RAMAMURTHY Vs. SAGIRAJU TIRUPATIRAJU

JUDGEMENT

(1.) This is an appeal under clause 15 of the Letters Patent from the judgment of Happell, J., allowing an appeal filed against the order of the learned Subordinate Judge of Coconada who reversed the order of the District Munsiff of Peddapuram on an application filed by the respondent to enforce a security bond executed by the appellant. The respondent, when he was a minor represented by his maternal grandfather, obtained a decree in O.S. No. 351 of 1927 on the file of the Court of District Munsiff of Peddapuram for a sum of Rs. 1,020. The maternal grandfather as next friend was allowed to draw out the money under Order 32, Rule 6, Civil Procedure Code, on the execution of a security bond by the appellant. By that bond, the appellant undertook to pay any amount that may be found to be payable to the plaintiff if within 3 years of his attaining majority he raised any dispute and churned to recover any money from his guardian in respect of the decree amount. Unfortunately, this bond which was accepted by the District Munsiff, Peddapuram, was not executed in favour of the District Munsiff as it ought to have been. Actually the bond does not purport to be in favour of any person. The difficulty in this case has arisen purely on account of this circumstance.

(2.) The respondent became a major on the 10 January, 1941, and on the 8 August, 1941, he instituted a suit, O.S. No. 175 of 1941 against his erstwhile guardian, his maternal grandfather, for rendition of account and for recovery of the amount which may be found payable to him on the taking of the account. The guardian died pending the suit and the grandmother was brought on record as his legal representative. On the 23 December, 1941, an ex parte decree was passed in favour of the respondent against the assets of the deceased grandfather in the hands of the grandmother. Thereafter, on the 23 March, 1942, the appellant filed an execution application in O.S. No. 351 of 1927 to recover the amount mentioned in the security bond. This petition, however, was dismissed on the 14 June, 1943, owing to a technical defect in the decree. Subsequently, there was an amendment of the decree and again, on the 9 December, 1943, the appellant filed another application for execution in O.S. No. 351 of 1927, E.P. No. 40 of 1944 out of which the present appeal arises.

(3.) The learned District Munsiff of Peddapuram, overruling the objections raised by the appellant, held that the respondent could proceed to recover the amount claimed by sale of the properties secured under the security bond. He held that that as the surety bond was not in favour of any officer of the Court but in favour of the Court itself, it could not be assigned, but the procedure indicated in the ruling of the Judicial Committee in Raj Raghubar Singh v. Jai Indra Bahadur Singh (1919) 38 M.L.J. 302 : L.R. 46 I.A. 228 : I.L.R. 42 All. 158 (P.C.) must be adopted and the bond must be enforced under the inherent powers of the Court. He held that the application in question could not be deemed to be an application to execute the decree in O.S. No. 351 of 1927 and therefore could not be said to be barred by the 12 years rule under Section 48, Civil Procedure Code. On appeal the learned Subordinate Judge reversed the decision of the District Munsiff and dismissed the respondent's application on the ground that it was barred under section, 48 Civil Procedure Code. There was an appeal to this Court which was heard by Happell, J., who set aside the decision of the Subordinate Judge and restored the order passed by the District Munsiff and directed the application to be restored to file and to be heard and determined on the merits. Two questions were raised before him : namely, (1) whether the procedure adopted by the appellant to enforce the security bond was in accordance with law and (2) whether in any case, the petition was not barred under Section 48 of the Civil Procedure Code by reason of the fact that it had been filed more than 12 years after the date of the decree in O.S. No. 351 of 1927. On both these questions, the learned Judge gave his decision in favour of the respondent.