SURAJ DIN Vs. FIRM NARAIN RAO PERMESHWARI PRASAD

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against an order dismissing his objections to the application for execution of the decree. The material facts as stated by learned Counsel are these. Two persons, Bhajan Lal and Hira Lal, had executed a sale deed in favour of the appellant, Surajdin, in respect of certain property belonging to them. The respondent before us was one of the creditors of the vendors and had brought a suit for a declaration that this sale was void and ineffectual because it had been executed with the intent to defeat and delay the creditors of the vendors. Surajdin was the principal defendant to that suit. The suit was decreed and costs were awarded to the plaintiff. Surajdin filed an appeal in this Court against that decree. During the pendency of the appeal the applied for the stay of the execution of the decree for costs. That application was granted subject to his furnishing security to the extent of Rs. 2000. Thereupon two persons, Hazari and Mata Palat, executed a security bond, each of them undertaking Suability to the extent of Rs. 1000 for the due performance of the decree which might ultimately be passed against Surajdin. It is important to note that in the security bond no person was mentioned as a mortgagee or as a parson on whom any right to enforce or realize the security was conferred. It merely contains an undertaking to pay. This fact is admitted by the learned Counsel appearing for the appellant. Surajdin's appeal was ultimately dismissed by this Court on 30 November 1932, and costs of the appeal also were awarded to the respondent against Surajdin. It is this decree for costs, for the satisfaction of which Hazari and Mata Palat had stood surety, that is now in execution.

(2.) The first attempt made by the decree-holder respondent for the realization of the amount due under the decree was in the year 1933. On 2 March, in that year the decree-holder filed his first application for execution. It was against the sureties, Hazari and Mata Palat alone and prayed for the realization of the money by sale of the property hypothecated under the security bond. Surajdin was not made a party to that application. It may be mentioned here that the original suit has been brought in the Court at Jaunpur, and this application for execution against the sureties was filed in that Court. While that application for execution against the sureties was pending, the decree-holder took certain steps against Surajdin which proved infructuous, and the details of those proceedings are not necessary for our present purpose. Surajdin, it was found, was residing at Allahabad where he was in service. On 8 February 1936, the decree-holder made an application to the Jaunpur Court praying for a transfer of the decree to the Court at Allahabad. The Jaunpur Court passed an order granting this application and transferring the decree to Allahabad in March 1936. In July 1936, the decree-holder made an application for execution, as required by the Code, to the Court at Allahabad, to which the decree had been transferred, praying for the arrest of the judgment-debtor, Surajdin. It is this application which is the subject- matter of this appeal. Surajdin took a number of objections to the execution. The Court below has overruled all those objections and has directed execution to proceed against Surajdin by his arrest for realization of Rs. 2000 plus the costs of the execution proceedings.

(3.) The only point argued before us on behalf of the appellant is one of limitation and two grounds have been urged for holding that the application for execution made against the appellant is barred by time : (1) that the application of 2nd March 1933, being against the sureties alone, does not save limitation as against Surajdin who was not a party to that application; and (2) that, in any event, the application dated 2 March, 1933 against the sureties was not made in accordance with law within the meaning of Art. 182(5), Limitation Act, inasmuch as the decree, holder could proceed against the sureties only by suit on the security bond and not by an application for execution. Having heard learned counsel, we have come to the conclusion that there is no force in the contentions put forward. The argument as to the first ground mentioned above is based on Expl. 1 to Art. 182. It is argued that the sureties were no parties to the decree and therefore there was no decree, joint or several, to which Hazari and Mata Palat were parties along with Surajdin. It is contended that Expln. 1 not being applicable, Clause (5) of the Art. will not apply and that therefore the application for execution made against Surajdin must be held to be barred by time. Reliance is placed on the case in Raghunandan Prasad Singh V/s. Raja Kirtyanand Singh Bahadur (1929) 16 A.I.R. Pat. 595. It seems to us however that the learned Counsel is not correct in contending that inasmuch as Bxpl. 1 is not applicable, Clause (5) of the Art. is ruled out. Clause 5 lays down that the period of three years would run from the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree or order. In our judgment the application for execution made on 2 March, 1933 against the sureties was an application which sought to take a step-in-aid of execution of the decree. This is the view that has been taken in this Court in Muhammad Hafiz V/s. Muhammad Ibrahim (1921) 8 A.I.R. All. 291. At p. 158 of the report the following passage occurs: In our opinion therefore, we are dealing with a caso not contemplated by Expl. 1 to Art. 182 of Schedule 1, Limitation Act. We are driven back therefore, to Clause (5), and we can only put to ourselves a plain question : Does an application, asking the proper Court to execute the entire decree by the arrest of the person of a surety who has made himself liable for the satisfaction of the decree, amount to asking the execution Court to take a step-in-aid of the execution of the decree as against the principal whose liability the surety had taken upon himself? In the absence of authority to the contrary, the conclusion we have come to is that this question should be answered in the affirmative and that the decree-holders are in this case entitled to the benefit of Clause (5) of the Article.