RAMANATHAN PILLAI Vs. DORAISWAMI AIYANGAR AND NINE ORS

JUDGEMENT

(1.) In execution of the decree in C.S. No. 34 of 1912 in the High Court, one Sayyed Muhammad Rowther was arrested. On 29th September 1914, the judgment-debtor and the present appellant as surety on behalf of the judgment- debtor, executed a security bond for Rs. 4,443-20 in favour of the District Court of Ramnad, in which Court the execution proceedings were pending, and the judgment-debtor was released.

(2.) The bond provides for the payment of the amount either jointly or severally by the executants. There is also a further provision, that in case of default in payment, the money should be recovered from the surety personally, and from the properties hypothecated under the security bond and from the other properties of the surety. The properties hypothecated are, it appears, situate in the Madura district. On 8th February 1915, the appellant filed a suit (Original Suit No. 19 of 1915), in the Subordinate Judge s Court of Madura, against the plaintiffs in C.S. No. 34 of 1912 and their judgment-debtors for a declaration that the security bond had been fraudulently obtained by the defendants, and was void and not binding on the appellant s properties, and for cancellation of the security bond. It was alleged in the plaint, that the appellant was a person of weak intellect, and that the bond had been executed owing to undue influence, fraud and coercion practised upon him by certain persons acting in collusion with the defendants. A preliminary objection was taken by the defendants (respondents) that the suit was barred by Section 47, Code of Civil Procedure. The Temporary Subordinate Judge hold that the appellant had alternative remedies, (1) in execution proceedings in the Ramnad District Court and (2) by way of suit. He further decided that, as the appellant had a remedy in execution proceedings, the Court should not in the exercise of its discretion grant the declaratory relief soughs for, and in the result dismissed the suit. In appeal the District Judge took the same view and held, that as the party had a remedy in execution and also an appeal. the declaratory relief asked for was rightly refused.

(3.) Mr. Sitarama Rao for the appellant contended, (1) that the lower appellate Court ought to have held that no relief such as is claimed in the point could be granted in execution, (2) that the suit being for the substantial relief of cancellation of the document on the ground of undue influence and fraud, which the executing Court could not grant, She lower appellate Court erred in holding that it had a discretion in relief, and (3) that in any view of the case the discretion had been improperly and illegally exercised.