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Pandu Laxman More Vs. Balu Mahadu Patil - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 660 of 1905
Judge
Reported in(1906)8BOMLR557
AppellantPandu Laxman More
RespondentBalu Mahadu Patil
Excerpt:
civil procedure code (act xiv of 1882), section 545-execution of decree-stay of execution-temporary stay-surety-discharge of surety.;where the appellant male an application, under section 543 of the civil procedure code for stay of execution of the decree of the court below and the appellate court passed an order directing temporary stay on the appellant furnishing security under the said section and the lower court stayed execution after the appellant had furnished security the security bond executed in consideration of a temporary stay, was in itself binding on the surety for the period during which it was allowed to operate for the benefit of the principal. it was not a mere 'offer' by the surety, but the acceptance of an offer, having been executed by the surety in consideration of ad..........costs to abide the result.batty, j.9. for respondent it was urged that final acceptance of the surety-bond rested with the appellate court, and that, therefore, the surety was not bound at all, until the appellate court made the rule for stay absolute. with regard to that contention, i would add that the bond executed in consideration of a temporary stay, was in itself binding on the surety for the period during which it was allowed to operate for the benefit of the principal. it was not a mere 'offer' by the surety, but the acceptance of an offer, having been executed by the surety in consideration of ad interim stay; it was binding pending the discharge of the rile, and its operation during that period could not be cancelled by the court. the surety thereby made himself liable for.....
Judgment:

Russell, J.

1. In this case one Pandu Laxman, the appel. lantherein, got a decree in Suit No. 517 of 1898, in the Subordinate Judge's Court, against the defendant Babaji and others to recover possession of certain lands and profits and mesne profits. Defendant appealed (No. 296 of 1901) from the above decree and applied to the Thana District Court for stay of execution. That Court on the 31st January 1902, directed a notice to issue to the plaintiff and in the meantime ordered execution to stay on the applicant, the judgment-debtor furnishing security. On the 19th March 1902, Ba'a Mahadu, the present respondent, stool security to the judgment-debtor, and on the 21st March the Subordinate Judge reported to the District Court that execution had been stayed on the respondent having furnished security.

2. Apparently after this Balu applied to have his security-bond cancelled, and on the 4th April 1902 the Subordinate Judge reported that fact to the District Court and sought for further orders, and that Court on the 17th April made the following order :-

Fifteen days' time is granted to give fresh security.

3. Apparently further correspondence took place between the Subordinate Judge and the District Court, and on the 1st June 1903, the District Court passed the following order:-

In this case the Subordinate Judge cancelled the security-bond of one man who had stood surety. The applicant is not willing to give fresh security. The case is, besides, not fit for making rule absolute, I discharge the rule.

4. Now the learned District Judge was incorrect in the reading of his order of the 17th April 1902. By that order there was no cancellation of the security-bond, but 15 days were granted to give fresh security, the meaning of that being, if fresh security was given within 15 days, it would be accepted, if not, Balu's security-bond would continue. That being so, we have to consider the effect of the security-bond that was executed by Balu. There he says he voluntarily becomes surety, &c.;

5. The effect of this is, it will have to be ascertained, what is the amount for which Balu is liable.

6. The lower Court will have to find :

What sum, not exceeding Rs. 850, should be adjudged as compensation in respect of the stay of execution against the security from the 19th March 1902 to 1st June 1903?

7. We, accordingly, reverse the decree of the lower appellate Court and remand the case to that Court for disposal in the light of the remarks made in this judgment.

8. Costs of this appeal and appeal to the lower appellate Court to be paid by the respondent, and all other costs to abide the result.

Batty, J.

9. For respondent it was urged that final acceptance of the surety-bond rested with the appellate Court, and that, therefore, the surety was not bound at all, until the appellate Court made the rule for stay absolute. With regard to that contention, I would add that the bond executed in consideration of a temporary stay, was in itself binding on the surety for the period during which it was allowed to operate for the benefit of the principal. It was not a mere 'offer' by the surety, but the acceptance of an offer, having been executed by the surety in consideration of ad interim stay; it was binding pending the discharge of the rile, and its operation during that period could not be cancelled by the Court. The surety thereby made himself liable for such sum as on a consideration of all the equities the Court might adjudge to be fair compensation for losses sustained by the decree-holder owing to the temporary stay. The bond was accepted and acted on by the appellate Court for the purpose of ad interim stay, and its terms create a liability on the part of the surety, which, however, is limited not only by a specified maximum, but by reference to an adjudication which implies the consideration of all the circumstances arid equities in the case.


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