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Abdul Gafur Gulamsaheb Don Vs. Mahomed Mukaram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 290 of 1930
Judge
Reported inAIR1932Bom77; (1931)33BOMLR1593
AppellantAbdul Gafur Gulamsaheb Don
RespondentMahomed Mukaram
DispositionApplication dismissed
Excerpt:
civil procedure code (act v of 1908), sections 47, 55(4), 145---surety for judgment-debtor--order for realisation of surety--notice to surety--appeal by surety--conversion of revision application into appeal.;where a person stands surety for a judgment-debtor under a money decree and the court, after giving notice to the surety under section 145 of the civil procedure code, orders the security to be realised under section 55 (4), the surety can appeal against the order, under section 47 of the code.;an application for revision can in a proper case be treated as an appeal.;run bahadur singh v. bajrangi prasad singh (1924) i.l.r. 3 pat. 344 and sikandar khan v. baland khan i.l.r. 8 lah. 617, followed. - .....at the time of considering what order to make under section 55(4). it is desirable to give to the surety notice under section 145, as was done in this case.9. i have stated that the notice was under section 145. the learned trial judge has, no doubt, held that the notice was not under section 145. his decision is too technical. it is unnecessary that the proceedings should be duplicated by the surety being first called on under section 55 (4), and that, subsequently, fresh proceedings should be taken under section 145. the notice that was given may, and ought rightly to, be considered as a notice under section 145 also.10. the order must, therefore, be considered to be under section 145, so far as the surety is concerned, and he can appeal from it.11. it was argued, on behalf of the.....
Judgment:

Tyabji, J.

1. The question on the merits in this application is very short, but several preliminary questions arise, with which I must first deal.

2. There was a money decree. In the execution of the decree the judgment-debtor was arrested. Then there was a bond for security, in the form No. II, given in Appendix F, to the Civil Procedure Code. Subsequently the judgment-creditor wished to enforce the decree against the surety. Abortive proceedings took place, after which the judgment-creditor applied under Section 55 (4) of the Civil Procedure Code, which is to the effect that on the happening of certain events the Court may either direct the security to be realised, or commit the judgment-debtor to civil prison in execution of the decree.

3. It was argued before me that an order made under Sub-section (4) of Section 55 was not appealable.

4. In reply, my attention was drawn to Section 145, under which (so far as at present relevant), where any person has become liable as surety for the payment of any money, or for the fulfilment of any condition, imposed on any person, under a decree or order of the Court, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, provided that such notice, as the Court in each case thinks sufficient, has been given to the surety.

5. When proceedings are taken under this section--Section 145--the surety is to be considered a party, for the purpose of appeal, within the meaning of Section 47 ; and if the present proceedings are to be treated as taken under Section 145, then there lies an appeal from any order passed in these proceedings.

6. The question, therefore, turns into this,--whether or not the proceedings, originally expressly purporting to be under Section 55 (4), may be considered to have become proceedings under Section 145.

7. The argument against attracting Section 145 is that, though the ultimate proceedings against the surety cannot take place without notice to the surety, the Court, under Section 55(4), need not give notice to the surety, and the order does not affect the surety. It is argued, that, under Section 55 (4), there can only be the bare order to the effect that the security shall be realised: that, when such a bare order is sought to be executed against the surety, then Section 145 emerges into operation, and that, thereupon, a notice to the surety must be given, and then the other results that I have already mentioned with reference to appeals, follow.

8. It seems to me that, in the present case, the Court did, what it was not only entitled to do, but what was desirable that it should do, at the time of considering what order to make under Section 55(4). It is desirable to give to the surety notice under Section 145, as was done in this case.

9. I have stated that the notice was under Section 145. The learned trial Judge has, no doubt, held that the notice was not under Section 145. His decision is too technical. It is unnecessary that the proceedings should be duplicated by the surety being first called on under Section 55 (4), and that, subsequently, fresh proceedings should be taken under Section 145. The notice that was given may, and ought rightly to, be considered as a notice under Section 145 also.

10. The order must, therefore, be considered to be under Section 145, so far as the surety is concerned, and he can appeal from it.

11. It was argued, on behalf of the surety, that, if an appeal lay, then the present proceeding is incompetent, as it is by way of a revisional application. I do not entertain the slightest difficulty on this question. It seems to me that this, if any, is a proper case, where an application for revision may be treated as, in fact, an appeal: Run Bahadur Singh v. Bajrangi Prasad Singh ILR (1924) Pat. 344 and Sikandar Khan v. Baland Khan ILR (1927) Lah. 617.

12. I, therefore, come to the merits of the case. The learned Assistant Judge has held that the bond required the judgment-debtor to appear when called on. He had not been called on to appear on the occasion when he was absent from the Court. It seems to me that the construction put upon the bond with reference to the facts that took place was correct; and the decision 'that the non-appearance of the judgment-debtor on November 2, 1927, was not a breach of the condition in the surety bond,' was right.

13. The rule is discharged with costs.


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