ODAYAMANGALATH APPUNNI NAIR Vs. ISACK MACKADAN

JUDGEMENT

(1.) The original suit was instituted against one C.W. Fuller. In the course of the suit an application was made for his arrest. When he was brought before the Court the respondent before us agreed to stand surety for him. There upon, Fuller was released from custody. I shall refer to the terms of the bond and its legal effect later on. Subsequent to this, the surety asked the Court, at a time when Fuller was before it to conduct his case, that he should be relieved from his obligation to produce the defendant. The District Munsif did not apparently agree to this course. Thereafter, the plaintiff and the defendant agreed to a consent decree which has now been put in execution. The surety, whose bond was not in terms discharged, now pleads that, by his producing the defendant before the Court and praying to be relieved from responsibility, the liability which he undertook under the bond was put an end to. There is a further contention that, as the parties to the suit instead of going to trial agreed to a decree by consent, the surety was discharged under Section 135 of the Indian Contract Act. The District Munsif rejected these contentions and ordered execution. On appeal the District Judge has reversed that order. A Civil Miscellaneous Second Appeal against the order refusing execution against the surety, and a Civil Revision Petition against the order discharging the surety from liability, have been filed in this Court.

(2.) Mr. Menon, for the respondent, raised a preliminary objection, that, as the District Judge in the exercise of his appellate powers released the surety from liability and as his decision on law does not affect his jurisdiction, the Civil Revision Petition is incompetent. As regards the Civil Miscellaneous Second Appeal, his contention is that, if the Civil Revision Petition goes, the ground of appeal in the Civil Miscellaneous Second Appeal fails and should be dismissed. It may be, that for the hearing of the Civil Revision Petition the preliminary objection has some force. But as the same order has been passed in the appeal from which the Civil Miscellaneous Second Appeal has been presented, we are entitled in Second Appeal to scrutinize the correctness of that order. I must overrule the objection so far as it relates to the Civil Miscellaneous Second Appeal.

(3.) Now to the merits. Mr. Madhavan Nayar, at the outset, referred us to the terms of the bond which ought to have been taken by Civil Court under Order XXXVIII. Form No. 2 in Appendix F of the Code of Civil Procedure is far more comprehensive than the bond which has been taken in the present case. The attention of the District Judge should be drawn to the incompleteness and inaccurate language of the bond now before us. It is desirable that in taking bonds of this description, the provisions of the Code should be strictly complied with. None the less, we are not concerned now with what might have been the terms of the bond but only with the interpretation of the actual agreement that was signed. We must therefore deal with the liability of the surety with reference to the bond which he actually executed. By that bond, which is Exhibit A in the case, the. surety undertook. to produce the defendant at the time and place ordered by the Court. If I fail to do so I and nay properties are liable for the amount payable to the plaintiff. The question for consideration is, did he produce the defendant at the time and place ordered by the Court? The procedure to be adopted on an application by the surety, for discharge from liability, is contained in Order XXXVIII, Rule 3. Two contingencies are contemplated in that rule. The first is an application by the surety for discharge, whereupon the Court decides either to summon the defendant or to issue a warrant for his arrest. Clause (3) of that rule which provides for the discharge of the surety runs thus: on the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary surrender, the Court shall direct the surety to be discharged from his obligation, and shall call upon the defendant to find fresh security. It is conceded that there was no summons or warrant against the defendant. He was in Court for the purpose of conducting the suit. The next point is, did he surrender himself on that occasion? The District Munsif says: He also expressed his unwillingness to surrender that day. I declined to arrest him on the spot as he, being a party attending a Court for the purpose of conducting his case, is exempt from arrest". In order to satisfy the requirements of a surrender, it is not enough that a party is before the court, but he should submit himself to be dealt with by the Court as directed by Order XXXVIII. The sentence from the Munsif s judgment which I quoted, makes it clear that the defendant did not surrender.