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Narayan Ganpatbhat Vs. Timmaya Subhaya - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 753 of 1905
Judge
Reported in(1906)8BOMLR807
AppellantNarayan Ganpatbhat
RespondentTimmaya Subhaya
Excerpt:
limitation act (xv of 1877), schedule ii, article 179, explanation-decree passed jointly-application for execution against one of the judgment-debtors-surety and the judgment-debtor-surety under section 253 of the civil procedure code-surety and the judgment-debtor are not joint judgment-debtors.; before the passing of a decree, a surety became liable for the due performance of part of the decree. the decree was passed in january 1893. no darkhasts were preferred against the surety till 20th june 1902 ; though application for execution was made in time against the judgment-debtor alone. on the question whether the darkhast against the surety was barred :--;that the darkhast was time-barred as the decree-holder was not entitled to take advantage of the previous application for execution..........and it is contended that in that decision the decree against the judgment-debtor was treated as a joint decree against the judgment-debtor and the surety. but it is clear on referring to that case, that the judgment expressly describes as assumption the proposition that the surety was to be treated as a party to the suit, bound so far as surety for its due performance; and that case does not decide, that where there is joint liability with the judgment-debtor to be deduced from the decree and surety bond and section 253 civil procedure code combined, there the original decree must be treated as one 'passed jointly' against the judgment-debtor and the surety. the words of the explanation to article 179, already read, appear to be plain : they refer to the decree which is 'passed jointly'.....
Judgment:

Aston, J.

1. Respondent No. 2 had before the passing of the decree in an original suit, become liable as surety for the due performance of part of the decree. The decree in the original suit was passed in January 1893. The first Darkhast application which was made to execute the decree under Section 253, Civil Procedure Code, as against the surety was in 1902.

2. The appellant seeks to take advantage of the previous application for execution made as against the judgment-debtor in order to prevent the bar of limitation. Article 179, Expln. 1, para 2, sets out that 'where the decree or order has been passed jointly as against more persons than one, the ap-plication if made against any one or more of them, or against his or their representatives, shall take effect against them all. ' It has been argued that although the decree in question was not in fact passed jointly against the judgment-debtor and the surety, the appellant should be allowed to take advantage of this provision and to treat the decree as passed jointly as against the judgment-debtor and the surety, because under Section 253 there becomes established a statutory joint liability on his part. In support of that contention the 'case of Kusaji v. Vinayak ILR (1898) 23 Bom. 478 was cited, and it is contended that in that decision the decree against the judgment-debtor was treated as a joint decree against the judgment-debtor and the surety. But it is clear on referring to that case, that the judgment expressly describes as assumption the proposition that the surety was to be treated as a party to the suit, bound so far as surety for its due performance; and that case does not decide, that where there is joint liability with the judgment-debtor to be deduced from the decree and surety bond and Section 253 Civil Procedure Code combined, there the original decree must be treated as one 'passed jointly' against the judgment-debtor and the surety. The words of the explanation to Article 179, already read, appear to be plain : they refer to the decree which is 'passed jointly' against more persons than one, and do not mean as far as we understand them, a decree where a joint liability may be deduced, by combining the surety bond and the provisions of Section 253, with the decree in dispute.

3. The appellant is thus not entitled to take advantage of the previous application for execution of the decree, which he made against the judgment-debtor.

4. Mr. Nilkanth for the respondent also contended that the decree of the lower Court may be supported on the ground that it can be shown that the District Judge was in error in holding that the decree as against the judgment-debtor, is not also barred. In view of the decision we have arrived at as to Article 179 Limitation Act, we need not go into this point.

5. Decree of the lower appellate Court confirmed with costs.


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