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Pabitra Mohan Majumdar Vs. Nur Md. Khalifa and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 135 of 1951
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 145 and 151
AppellantPabitra Mohan Majumdar
RespondentNur Md. Khalifa and ors.
Appellant AdvocateP. Chaudhuri and S.K. Ghose, Advs.
Respondent AdvocateS.M. Lahiri and S.C. Choudhuri, Advs.
DispositionRevision dismissed
Prior history
Ram Labhaya, J.
1. Facts giving rise to this revision petition are as follows:
2. Plaintiff O. P. nO, 1 instituted a suit for recovery of a sum of Rs. 3,450/- and got movable property like utensils etc. belonging to O. P. No. 2 attached, before judgment. Articles attached were kept in the custody of the petitioner. He executed a bond agreeing to produce those articles when called upon to do so by the Court. Plaintiff got an ex parte decree in the suit and in execution of his decree prayed for
Excerpt:
- - 3,450/- and got movable property like utensils etc. 930/4/- (after necessary adjustments) and directed that if the petitioner failed to pay the amount by 31st july, a certificate shall be issued to the collector, lakhimpur at dibrugarh for realisation of the amount by revenue process as arrears of revenue......the court to proceed against the property of a surety whether an obligee is or is not named in the surety bond.' but he was of the view that 'where inherent jurisdiction to proceed against the property of the surety has been exercised no right of appeal is given by the code and there being no inherent right of appeal, the appeal by the surety is incompetent.'this view conflicts with the madras view expressed in the two madras cases referred to above. the view taken in the madras cases is the logical result of the decisions of their lordships of the privy council. if the sureties are made parties to the application in order to enforce liability on a bond, they for all practical purposes become parties as it were to the suit and can therefore be made liable in execution in any enquiry.....
Judgment:

Ram Labhaya, J.

1. Facts giving rise to this revision petition are as follows:

2. Plaintiff O. P. nO, 1 instituted a suit for recovery of a sum of Rs. 3,450/- and got movable property like utensils etc. belonging to O. P. No. 2 attached, before judgment. Articles attached were kept in the custody of the petitioner. He executed a bond agreeing to produce those articles when called upon to do so by the Court. Plaintiff got an ex parte decree in the suit and in execution of his decree prayed for the sale of attached articles. The petitioner was asked to produce them. When the articles were produced the decree-holder questioned the identity and urged that the articles attached had been changed.

The Nazir was asked to make a report. According to his report out of 56 items 12 items had been changed. The petitioner was then asked to show cause why he should not be held responsible for compensation caused by the loss due to the substitution of articles that had taken place while they were in his custody. After necessary enquiry the learned Subordinate Judge found the petitioner liable for a sum of Rs. 930/4/- (after necessary adjustments) and directed that if the petitioner failed to pay the amount by 31st July, a certificate shall be issued to the Collector, Lakhimpur at Dibrugarh for realisation of the amount by revenue process as arrears of revenue.

3. Mr. Lahiri the learned counsel for the opposite parties has raised a preliminary objection. He contends that a petition of revision cannot be entertained as the remedy by appeal was available to the petitioner. Ho argues that the petitioner had the right of appeal whether the case was covered by the provisions contained in Section 145, Civil P. C., or not. The learned counsel for the petitioner urges that even though the bond could be enforced in execution, the facts of the case do not attract the application of Section 145, Civil P. C. The enforcement of the bond in these circumstances could only be in the exercise of the inherent powers of the Court. Such being the case, the' order of the executing Court would not be appealable and the petition of revision would be the proper remedy.

4. We have heard the learned counsel at some! length. I am inclined to the view that even if the bond was enforced by the Court in execution in exercise of its inherent powers, the aggrieved party will have the right to appeal. The person proceeded against should have the right of appeal against an order directing him to fulfil the conditions of the bond executed by him. Section 145 applies where a person has become liable as surety for the performance of any decree or any part thereof, or for the restitution of any property taken in execution of a decree, or for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon. The section does not govern all cases in which enforcement of a bond in execution may be found expedient or desirable. In such cases, Courts have enforced the bond in the exercise of their inherent powers.

In Ayyasioami Ayyar v. Sivakki Animal, A. I. R. 1933 Mad. 780, a Division Bench of the Madras High Court held that the Court could in certain cases to which Section 145 did not apply, pass orders in regard to executing orders against sureties under its general powers and in such cases the surety has also a remedy by way of appeal from such orders. In Rangaswami Chetty v. Narayana, Iyengar, A. I. R. 1938 Mad. 215, Horwill J. held that although the surety in that case having deposited into Court money as security was not personally liable, yet the provisions analogous to Section 145 did apply and the surety also had a right of appeal under Section 47. Reliance was placed in both these cases on a decision of their Lordships of the Privy Council reported in Raj Raghubar Singh v. Jai Indra Bahadur Singh, 42 ALL, 158. Commenting on this decision Horwill J. observed as follows :

'They (their Lordships of the Privy Council) then say at p. 167 :

'It is suggested that they are bound to the Court but the Court is not a juridical person. It cannot be sued. It cannot take property, and as it cannot take property it cannot assign it. It remains therefore that here is an unquestioned liability, and there must be some mode of enforcing it and that the only mode of enforcing it must be by the Court making an order in the suit upon an application to which the sureties are parties, that the property charged be sold unless before a day named the sureties find the money,' i. e., their Lordships think that if the sureties are made parties to the application to make them liable on a bond then they become parties as it were to the suit and can therefore be made liable in execution in any enquiry under Section 47. Although therefore they find that S. 145 does not apply, they would apply provisions analogous to S. 145 to a case to which Section 145 does not 'literally have any application.'

In 42 ALL. 158, their Lordships of the Privy Council held that on the true construction of the hypothecation bond it was an instrument of charge, and not a bond imposing any personal liability on the appellants and that in these circumstances S. 145, Civil P. C. was not applicable. Notwithstanding this they held that the Court had jurisdiction over the surety in the proceedings that followed the ultimate decision of the case to make an order as to their liability.

5. These authorities support the view that the procedure provided by Section 145 may be applied to cases to which it may not be applicable speaking strictly. Mr. Chaudhuri has not disputed that the bond was enforceable in the course of the execution proceeding. His contention is that the enforcement being in the exercise of the inherent powers of the Court, a remedy by appeal would not be available. His point is that a right of appeal can be given or conferred by statute and is not available to parties to a proceeding under Section 151, Civil P. C. His contention receives support from Ram Singh v. Imperial Bank of India Ltd., Rawalpindi, A. I. R. 1928 Lah. 802. In this case Dalip Singh J. held relying also on Raj Raghubar Singh v. Jai Indra Bahadur Singh, 42 ALL. 158 (p. c.) that

'in the Punjab there is inherent jurisdiction in the Court to proceed against the property of a surety whether an obligee is or is not named in the surety bond.'

But he was of the view that

'where inherent jurisdiction to proceed against the property of the surety has been exercised no right of appeal is given by the Code and there being no inherent right of appeal, the appeal by the surety is incompetent.'

This view conflicts with the Madras view expressed in the two Madras cases referred to above. The view taken in the Madras cases is the logical result of the decisions of their Lordships of the Privy Council. If the sureties are made parties to the application in order to enforce liability on a bond, they for all practical purposes become parties as it were to the suit and can therefore be made liable in execution in any enquiry under Section 47. Proceedings against them in the summary way involved abridgement of their right; for if the summary procedure were not available, the only method of enforcing the bond would be by a suit. It would be unfair to the sureties if they are also deprived of the right of appeal when their liability is determined in a summary way.

Sankunni Variar v. Vasudevan Nambudripad A. I. R. 1926 Mad. 1005 on which also Mr. Chaudhuri has relied does not help him on this point. In this case it was decided that though the liability under Section 145 attaches only in the case of a person who is surety for the payment of any money under an order of the Court and not a surety liable to pay owing to default, a bond by which a surety undertakes to produce certain property of the judgment-debtor attached in execution of the decree and on any default, is liable for its value, can be enforced by way of execution, apart from the provision of Section 145 in the exercise of the inherent powers of the Court without recourse to a suit. The question whether a surety in such a case will have the right of appeal or not was not raised in this case. But the decision was given in an appeal on behalf of the sureties. It was therefore assumed in this case that a right of appeal would exist. To this extent the decision is against the contention raised by Mr. Chaudhuri.

6. For reasons given above, I hold that the petitioner had the right of appeal and his petition of revision in these circumstances is incompetent and not entertainable. In the view that I take of the matter it is not necessary to decide whether Section 145 is attracted by the facts of this case, for the right of appeal exists even if Section 145 is not applicable as contended by Mr. Chaudhuri.

7. The petition of revision fails and is dismissed. We make no order as to costs.

Thadani, C.J.

8. I agree.


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