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Abdul HusseIn Essuffalli Vs. D.J. Mistri and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1312 of 1918
Judge
Reported in(1921)23BOMLR1263
AppellantAbdul HusseIn Essuffalli
RespondentD.J. Mistri and Co.
Excerpt:
.....be realised by the prothonotary and paid to the-defendants, as the said hoosseinbhai heptulla had failed to produce the plaintiff in court on such day. the plaintiff failed to appear on the 31st march before the chamber judge. as the surety failed to produce chhedi on the date on which ho was directed to produce him, the security was forfeited......the surety bond given by one husseinbhai heptulla, for the appearance of the plaintiff before the chamber judge on the 31st march 1921 should be estreated and that the sum of rs. 2000 should be realised by the prothonotary and paid to the-defendants, as the said hoosseinbhai heptulla had failed to produce the plaintiff in court on such day. the plaintiff was arrested at the instance of the defendants and produced before the judge in chambers on the 10th march when he asked for time that he might tile his petition under the insolvency act. accordingly the order was made that he should appear before the learned judge on the 31st march and as security for his applying to be declared an insolvent and for such appearance the aforementioned husseinbhai heptulla deposited with the prothonotary.....
Judgment:

Norman Macleod, Kt., C.J.

1. The defendants in Suit No. 1312 of J918 have taken out thin summons as decree-holders on the counterclaim tiled by them in the above suit, for an order that the surety bond given by one Husseinbhai Heptulla, for the appearance of the plaintiff before the Chamber Judge on the 31st March 1921 should be estreated and that the sum of Rs. 2000 should be realised by the Prothonotary and paid to the-defendants, as the said Hoosseinbhai Heptulla had failed to produce the plaintiff in Court on such day. The plaintiff was arrested at the instance of the defendants and produced before the Judge in Chambers on the 10th March when he asked for time that he might tile his petition under the Insolvency Act. Accordingly the order was made that he should appear before the learned Judge on the 31st March and as security for his applying to be declared an insolvent and for such appearance the aforementioned Husseinbhai Heptulla deposited with the Prothonotary Rs. 2000, which was to remain with the Prothonotary as security. It may be noted that under Section 55(4) of the Civil Procedure Code the judgment-debtor should give security not only that he will apply to be declared insolvent but also that he will appear when called upon in any proceeding upon the application, so that the security should continue until a final order is made upon the petition. The plaintiff failed to appear on the 31st March before the Chamber Judge. When that happens, under Section 55, Sub-section (4), of the Civil Procedure Code, the Court may either direct the security to be realised or commit the judgment-debtor to the civil prison in execution of the decree. A direction that the security should be realised seems unnecessary, as the judgment-creditor can proceed is execution against the surety under Section 145 of the Civil Procedure Code, thus dispensing with the necessity of filing a separate suit. The actual order made by the Chamber Judge on the 31st March was to direct the plaintiff to be re-arrested and committed to jail. Section 145 of the Code directs that where any person has become liable; as surety, inter alia, for the fulfilment of any condition imposed on any person under an order of the Court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him to the extent to which he has rendered 1 himself personally liable in the manner therein provided for the execution of decrees. In Basanti Lai v. Chhedo Singh (I.L.R (1912) Cal. 1048 one Chhedo Singh stood surety for the production of one Chhedi Halwai, who, on filing an application for insolvency, was ordered to be released from the civil jail. As the surety failed to produce Chhedi on the date on which ho was directed to produce him, the security was forfeited. The decree-holder prayed that the amount should be forfeited to him basing his claim on Section 145 of the Civil Procedure Code. The District Judge refused that1 application and declared that the money should be forfeited to Government. On appeal it was held that there was no power in the Court to declare a forfeiture in favour of the Government. The surety contended that his suretyship did not extend beyond the pendency of the insolvency proceedings, but as he had not appealed from the order adjudicating upon this point adversely to him, the Court directed that the Sum of Rs. 500 should be paid to the decree-holder, to this extent executing the decree against the surety. If the security has been realised under an order of the Court under Section 55(4) or in the first instance consists of a cash deposit, as in. this case, the judgment creditor may ask the Court to execute the decree under Section 145 against the money lying in Court. But the Court may in exercise of its discretion refuse to make an Order in favour of the judgment-creditor.

2. Now, the debtor has sworn that lie came to the Court, but did not know where to find the Chamber Judge, and when after moving from Court to Court he found himself at last in the right place, he was told that the Chamber work was over and an order hail been made for his arrest. Whether that story is true or not there is no doubt that he had so far fulfilled the condition on which he was allowed to be released on the 15th March by tiling his petition ii the Insolvency Court, and if he had issued notices to the creditors lie would be able to apply to the Insolvency Court for a protection order on the 5th April. And taking it at the most that the surety was guilty of great carelessness in not seeing that the plaintiff was guided to Use proper place where he would find the Chamber Judge, 1 think lie will be sufficiently punished by having to pay his costs of this summons, which will otherwise be discharged. The moneys can be repaid by the Prothonotary.

3. I think the proper order is that each party do pay his own costs.


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