MEHERULLA Vs. SARIATULLA

JUDGEMENT

(1.) The plaintiff opposite party brought a suit against the petitioner in the 3 Court of the Munsif at Habiganj, exercising Small Cause Court powers, for the recovery of the sum of Rs. 100 with damages. The plaintiff's case was that he had executed a bail bond for Rs. 100 for the release of the petitioner from custody in a criminal case in which the latter was an accused and that the plaintiff had to pay the amount as the bail bond was forfeited on account of the laches of the petitioner. The defence inter alia was that the plaintiff was not legally entitled to recover the amount. The trial Court decreed the suit. Against that order the petitioner has obtained the present rule.

(2.) The trial Court has proceeded upon the view that there was an implied contract by the defendant to indemnify the plaintiff upon the bail bond. It is pointed out on the other side that the bail bond itself is not on the record. But I take it that it was properly proved, otherwise it takes away the very foundation of the case. It is admitted that there was no express contract and the point is whether the trial Court is correct in its view that there was an implied contract to indemnify the plaintiff and that on such implied contract the plaintiff is entitled to succeed. It is contended is support of the rule that there was no such implied contract and further that, even if there was an implied contract, it could not be legally enforced. Upon the terms of the surety bond, a copy of which has been produced, it may be said that there was an implied contract that the accused should duly appear on the date fixed for the hearing. But I do not think that the implication went any further and that there was an implied contract that the accused should either appear on the date fixed or pay the amount which his surety had to pay. It may be noticed here that the accused himself had also furnished a bail bond.

(3.) Upon the further question as to whether any such implied contract, upon which the lower Court has relied, is enforceable in law, authorities seem to be against the view taken by that Court. The law on the subject of contract is summarized as follows: Where the defendant in a criminal case has been ordered to find bail, a promise given either by him or by a third person to indemnify his surety against liability on his recognizances is illegal, because it deprives the public of the protection which the law affords for securing the appearance or good behaviour of the defendant : Halsbury's Laws of England, Vol. 7, Art. 826, at p. 398.