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Shek Suleman and anr. Vs. Shivram Bhika Ji and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom71
AppellantShek Suleman and anr.
RespondentShivram Bhika Ji and anr.
Excerpt:
sureties - sight of surety to appeal--extent of sureties' liability--attachment before judgment--security under section 484 of civil procedure code (xiv of 1882)--decree--stay of execution by appellate court--fresh security under section 546 of civil procedure code (xiv of 1882)--liability of original sureties. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would..........in the court of first instance, and he does not now dispute his liability.2. the decree in appeal awarded a greatly increased sum to the plaintiff. the two sureties now before the court, on their failing to cause the property of the defendant to be placed at the disposal of the court of first instance for execution of the decree in appeal, have been held liable for the amount of that decree.3. they now contend (1) that the decree of the court of first instance having merged in that of the district court, they are not liable at all under a security for execution of the decree only of the former court (2) that, at any rate, they are responsible only for so much as was there adjudged against the defendant; and (3) that this original liability has been extinguished by the total.....
Judgment:

West, J.

1. In this case the appellants became sureties along with a third person, under Sections 483, 484 of the Code of Civil Procedure, for the production of property attached in the course of a civil suit by the Court of first instance. The decree was in favour of the plaintiff as to part of his claim. Both parties appealed to the District Court, and in that Court the defendant, in order to get execution stayed, gave security for the fulfillment of that Court's decree. His surety was the third one of those who had bound themselves in the Court of first instance, and he does not now dispute his liability.

2. The decree in appeal awarded a greatly increased sum to the plaintiff. The two sureties now before the Court, on their failing to cause the property of the defendant to be placed at the disposal of the Court of first instance for execution of the decree in appeal, have been held liable for the amount of that decree.

3. They now contend (1) that the decree of the Court of first instance having merged in that of the District Court, they are not liable at all under a security for execution of the decree only of the former Court (2) that, at any rate, they are responsible only for so much as was there adjudged against the defendant; and (3) that this original liability has been extinguished by the total change of circumstances created when the District Court without their assent postponed execution of the first decree at the request of the defendant, and thus allowed him a delay which affected, or, at any rate, might materially affect his solvency as it existed when the first decree was passed against him.

4. We have already ruled that, on the decisions, an appeal lies in the present case; and proceeding now to consider the several points of objection to the judgments of the Courts below, we think (1) that the decree of the Court of first instance, immediately on its being made, satisfied the condition under which the sureties became severally bound to cause the defendant to place at the disposal of the said Court, when required, the property specified in their bond. In default they became bound to pay to the said Court......such sum as the said Court may adjudge against the said defendant.' This liability having thus been fully incurred was not extinguished by appeal being made against the decree. If the amount recoverable by the plaintiff should be diminished [in appeal, the amount of which payment could be enforced would be diminished to a like extent, and the sureties' engagement being one of indemnity would diminish in the same proportion. So, too, if the decree being reversed the sum recoverable became zero, the sureties liability would be reduced to nothing. This was involved in the nature of their engagement, but it did not cease to be an engagement, because the decree of the first Court merged in that of the Appellate Court. The liability had been fully incurred whatever afterwards happened, though in its nature variable as to amount. '

5. But (2) we think that on the terms of the bond, as already quoted by us, and equally on the intention of the Legislature the liability of the sureties could not properly be extended beyond the amount, including costs, awarded to the plaintiff by the Court of first instance. This and no other sum would be such 'as the said Court may adjudge against the said defendant.' | Under Sections 483, 484 of the Code of Civil Procedure, the security is to be for the defendant's placing at the disposal of the Court of first instance such property as shall satisfy its decree, not the possible decree of a higher Court. Section 488 says that an attachment shall be raised when the suit is dismissed, though an appeal may still be competent to the plaintiff. Under Section 479 a defendant may be called on to furnish security for his appearance. The surety has to bind himself on the defendant's default to pay the sum awarded against the defendant in the suit, but no one, we suppose, would extend this to the amount afterwards awarded in the first or the second appeal. What the Code contemplates in such case is apparently security to be given to the Court for the execution of its own decree which in the regular course should promptly follow judgment. If an appeal is made, it is left to the Appellate Court to regulate the terms on which it will take security for the execution of its own decree. The security for its satisfaction may or may not be coincident in the liability it involves with one already incurred in the Court of first instance.

6. As to that liability (3), we think it is not affected by a postponement of the execution, which must have from the first been contemplated as possible and not improbable, because it is expressly provided for by the Code of Civil Procedure.

7. For these reasons, we modify the decrees of the Courts below and pronounce the appellants liable to the decree-holders for the amount of the decree of the Court of first instance.

8. Costs of this appeal and of the Courts below to be in proportion to the amounts sought and now awarded.


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