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Lakshman Sadashiv Vs. Gopal Appaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 754 of 1905
Judge
Reported in(1906)8BOMLR367
AppellantLakshman Sadashiv
RespondentGopal Appaji
DispositionAppeal allowed
Excerpt:
civil procedure code (act xiv of 1882), section 253-decree-execution-proceedings against a surety.; where a surety has become liable for the performance of a decree passed prior to his entering into the obligation, he cannot, under section 253 of the civil procedure code, be proceeded against in execution of the decree. - - but i do not feel at liberty to introduce into the section the words necessary for the success of the respondents' argument......throughout.aston, j.7. i also am of opinion that the court had not jurisdiction under section 253 of the civil procedure code to proceed in execution proceedings taken in execution of the original decree against the surety in this case, and concur in the order proposed.
Judgment:

Lawrence Jenkins, K.C.I.E., C.J.

1. This appeal arises out of an application for the execution of a decree against a surety under Section 258 of the Civil Procedure Code.

2.In order to accede to the argument advanced before us by the respondents in support of the decree passed in their favour in the lower Court we must read in Section 253 the word ' before' as being equivalent to 'before or after.'

3. There are decisions of this Court, and in particular I refer to that in Venkapa, Naik v. Baslingapa ILR (1887) 2 Bom.411, where it has been determined that certain words in that section are superfluous. But I do not feel at liberty to introduce into the section the words necessary for the success of the respondents' argument. The case of Venkapa Naik v.Baslingapa ILR (1887) 2 Bom. 411, has been relied on both before us and in the lower Court. It was in effect there said that the words ' in an original suit' were superfluous. How far that opinion was justified I need not discuss, but it is erroneous to suppose that there is any warrant in that decision for treating as superfluous not only the words ' in an original suit ', but also the words ' before the passing of the decree'. These last words are kept intact by that decision.

4. Here the surety has become liable, if at all, for the performance of a decree passed prior to his entering into this obligation. So that I come back to my original difficulty that we cannot read ' before ' as equivalent to ' before or after '.

5. For these reasons the decision of the lower appellate Court appears to me to be erroneous, for (in my opinion) the Court had not jurisdiction to proceed under Section 253 by way of execution. It maybe that there is a remedy against the appellant but it is not that which has been adopted.

6. The result, therefore, is that I would reverse the decree and dismiss the application with costs throughout.

Aston, J.

7. I also am of opinion that the Court had not jurisdiction under Section 253 of the Civil Procedure Code to proceed in execution proceedings taken in execution of the original decree against the surety in this case, and concur in the order proposed.


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