CHOLAPPA GATTINNA SANNA Vs. RAMCHANDRA ANNA PAI

JUDGEMENT

(1.) In this case an ex parte decree was originally passed against defendant No. 1 in Suit No. 342 of 1901; but that ex parte decree was set aside and the suit was ordered to be retried on the defendant No. 1 furnishing security. Two persons, who are now represented by the present appellants, stood sureties for the amount that the Court, in which the suit was filed, i. e. the Sirsi Court, might find the defendant liable for. Ultimately a decree was passed by the Sirsi Court against the defendant No. 1 on the 22nd March 1907 for a certain amount. The defendant appealed to the District Court, which, subject to some variation, with which we arc not now concerned, confirmed the decree of the trial Court on the 15th April 1908. In second appeal this Court confirmed the decree of the District Court on the 13th February 1911. The decree-holder applied for a transfer of the decree for execution against the sureties, on the 20th December 1913. The sureties contended that the execution as against them was time- barred as no application for execution was made within three years from the date of the trial Court s decree which alone they had undertaken to satisfy. The first Court allowed this contention : but in appeal the District Court has disallowed it and has ordered the Court of first instance to proceed with the application against the sureties according to law.

(2.) In the appeal before us the same contention has been raised on behalf of the sureties: I am of opinion that the view taken by the District Court is right. It is clear from Section 145 of the Code of Civil Procedure that the decree-holder has a right to execute the decree against a surety to the extent to which he has rendered himself personally liable in the manner provided for the execution of decrees. The Article which governs the applications for execution is Article 182 of the first schedule of the Indian Limitation Act. The Article prescribes three years limitation from the date of the decree or where there has been an appeal from the date of the final decree of the appellate Court. The execution of the decree is clearly not time-barred, if the period of limitation begins to run from the final decree of the High Court in Second Appeal. Under this Article the decree-holder has clearly a right to proceed against the sureties within the time allowed Under Clause 2 in the third column.

(3.) It is contended, however, that the sureties undertook to satisfy the decree of the Sirsi Court, that they have nothing to do with the appeal preferred by the defendant, to which they were not parties and that the application is governed by Clause 1 and not Clause 2. I do not think that this contention is sound. For instance, if the defendant s appeal had succeeded, the sureties would have taken the benefit of the appellate Court s decree in favour of the defendant. It cannot be said that when they stood sureties for the defendant in the trial Court they could not have contemplated the possibility of an appeal which would be an ordinary incident of the litigation which was re-opened with their assistance at the instance of defendant No. 1, and which would have the effect of extending the time from which the limitation would begin to run according to the Indian Limitation Act. The fact that the sureties would not be parties to the appeal could not make any difference.