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Shivbasappa Chinnappa Mughi Vs. Marigowda Huchangowda Achamatti - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 164 of 1932
Judge
Reported in(1934)36BOMLR499
AppellantShivbasappa Chinnappa Mughi
RespondentMarigowda Huchangowda Achamatti
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of 1908), section 2 (10); order xli, rule 6, clause (3) - surety for costs-decree for costs against the surety-execution of the decree pending an appeal-application for stay of execution by the surety-surety is a judgment-debtor.;order xli, rule 6, clause (2), of the civil procedure code, 1908, applies to a person who has stood as surety for costs and against whom a decree for costs has been consequently made. such a surety is a judgment-debtor within the meaning of section 2 (10) of the civil procedure code, and is entitled to apply for stay of the execution of the decree pending an appeal therefrom. - - where a court has jurisdiction to make an order and refuses to make it on the ground that it has no jurisdiction that is a good ground for interfering in..........2, applies to this case. execution is now taken against the surety of the judgment-debtor for the costs. rule 6, clause 2, is evidently meant to apply to the property which is the subject-matter of the suit, against the decree in which an appeal is pending. it does not cover the case of a sale of immoveable property of the surety. otherwise the words 'on the application of the judgment-debtor' would not have been specified. the surety is not the judgment-debtor.2. mr. patil who appears for the respondent has taken up a preliminary objection that no appeal lies. he refers to janardan triumbak v. martand triumbak i.l.r. (1920) bom. 241 : 22 bom. l.r. 1212 husain bhai v. beltie shah gilani i.l.r. (1924) all. 733 and u san wa v. u chit san i.l.r. (1931) ran. 354 in none of these cases were.....
Judgment:

John Beaumont, Kt., C.J.

1. The facts material for the purpose of this appeal are as follows. One Nilava filed a suit No. 107 of 1927 against Marigowda who is the respondent and other defendants to recover certain property as the heir of a deceased person. The suit was filed in forma pauper is and the defendant Marigowda applied that security for costs should be taken from the plaintiff. This was ordered to be done, and Shivbasappa, who is the appellant, entered into a surety bond making him self liable to pay the plaintiff's costs in the suit. The suit was dismissed with costs. An appeal has been filed, No. 126 of 1930, which is still pending in this Court. In the meantime the respondent took out execution (darkhast No. 623 of 1930) against Nilava and Shivbasappa the appellant. In these proceedings he applied that the amount of costs awarded to him should be realised by sale of the property of Shivbasappa, and on September 21, 1931, the Court ordered that his property should be sold. Shivbasappa then made an application to the Court under Order XLI, Rule 6(2), of the Civil Procedure Code, for stay of the order of sale pending the decision of the appeal. He stated in the application that he was willing to abide by any terms the Court may impose upon him. The Court rejected the application in the following order :

I do not think that Order XLI, Rule 6, Clause 2, applies to this case. Execution is now taken against the surety of the judgment-debtor for the costs. Rule 6, Clause 2, is evidently meant to apply to the property which is the subject-matter of the suit, against the decree in which an appeal is pending. It does not cover the case of a sale of immoveable property of the surety. Otherwise the words 'on the application of the judgment-debtor' would not have been specified. The surety is not the judgment-debtor.

2. Mr. Patil who appears for the respondent has taken up a preliminary objection that no appeal lies. He refers to Janardan Triumbak v. Martand Triumbak I.L.R. (1920) Bom. 241 : 22 Bom. L.R. 1212 Husain Bhai v. Beltie Shah Gilani I.L.R. (1924) All. 733 and U San Wa v. U Chit San I.L.R. (1931) Ran. 354 In none of these cases were the Courts concerned with an order under Order XLI, Rule 6 (2), of the Code. Mr. Nilkant Atmaram who appears for the appellant has cited the case of Md. Fazal Azim v. Mutsadi Lal A.I.R. [1927] Lah. 915 where it has been held that Section 47 of the Code is comprehensive enough to include an order under Order XLI, Rule 6, and permits the institution of an appeal against an improper order passed under that section. This is a decision of a single Judge, but it follows the decision of another Judge of the Lahore High Court in an earlier case in Firm Phallu Mal v. Banarsi Das A.I.R. [1924] Lah. 631 In Sir Dinshah Mulla's Edition of the Code, under Order XLI, Rule 6, there is a note that no appeal lies from an order under this rule, but, as pointed out in the case to which I have just referred, no reason is given nor authorities cited in support of that proposition.

3. The question whether an appeal lies may be open to doubt. I do not think it necessary to decide it in this case because, even if no appeal lies, this appeal may be treated as a revision application. Where a Court has jurisdiction to make an order and refuses to make it on the ground that it has no jurisdiction that is a good ground for interfering in revision under Section 115 of the Code. I may refer to the cases cited on this point in Mulla's Commentary at p. 346. It is clearly a case of failure to exercise the jurisdiction vested in the Court. If the application was one made by the judgment-debtor within the meaning of the rule, then the Court not only had jurisdiction to make the order asked for but was bound to make it. It refused to make the order on the ground that the applicant was not the judgment-debtor and was not, therefore, entitled to rely upon the rule.

4. It was urged on behalf of the respondent that Section 115 of the Code does not apply because there is no 'case decided'. But that proposition I am unable to accept. The result of the Court's order is that the property of the appellant will be sold forthwith. In so far as the rights of the parties in that respect are concerned the matter is decided.

5. Coming to the merits of the case, I am of opinion that the learned trial Judge has misunderstood the provisions of the rule in question. 'Judgment-debtor' is defined in Section 2, Clause.(10), of the Code. It means any person against whom a decree has been passed or an order capable of execution has been made. Section 145 of the Code provides as follows :

Where any person has become liable as surety-

(a) for the performance of any decree or any part thereof, or

(b) for the restitution of any property taken in execution of a decree, or

(c) for the payment of any money, or for the fulfillment 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 himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of Section 47:Provided that such notice as the Court in each case thinks sufficient has been given to the surety.

6. Clause (2) of Order XLI, Rule 6, must be understood with reference to these earlier provisions. This rule provides that where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such a decree, the sale shall, on the application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of. Reading the definition of 'judgment-debtor' along with the terms of Section 145, it is clear, I think, that the decree for payment of costs in Nilava's suit is one which is capable of execution against the present appellant Shivbasappa. He is, therefore, a judgment-debtor in respect of this decree; an order has been made for the sale of immovable property in execution of it and an appeal is pending from it. The essential requirements of the rule are, therefore, present and the Court was bound to stay the sale on such conditions as it might think fit to impose.

7. The learned advocate for the respondent did not attempt to support the judgment on the grounds taken by the learned trial Judge himself. He contended that the surety is not interested in the appeal which has been filed against the decree in the suit, because, as he says, his client Marigowda would be entitled to recover the costs from the surety in any event, whether the decree in the suit should be confirmed or reversed in appeal. It would be a very extraordinary form of surety bond which could impose such a liability upon the surety. The bond is not before us and the learned advocate is not in a position to say what its terms were. This argument, therefore, fails.

8. The other point urged is that under the provisions of Section 145 the surety is only to be regarded as a party in respect of his own liability as surety, and the decree against the principal cannot be treated as a decree against him. That seems to be only another way of arguing that the surety is not interested in the result of the appeal in the suit. I am not prepared to place that construction upon Section 145, and I hold that this argument also is untenable.

9. The result is, therefore, that the trial Court's order is wrong and must be set aside. We set aside the order of February 16, 1932, rejecting the appellant's application, and the consequential order of costs, and direct that the trial Court do proceed with the application and dispose of it according to law. The appellant must have his costs in the appeal.

N.J. Wadia, J.

10. I agree. The lower Court has rejected the surety's application for stay of the order of sale of his immovable property on the ground that Order XLI, Rule 6, does not apply. That order, according to the learned trial Judge, refers only to the property of the judgment-debtor and the surety cannot be considered as a judgment-debtor. But according to the definition of 'judgment-debtor' in Section 2(10) of the Code the surety would also be a person against whom the decree awarding costs has been passed or an order capable of execution has been made. The decree awarding costs against Nilava was a decree against the surety also.

11. Our attention has been drawn to the fact that under some other orders of the Code also the word 'judgment-debtor' must be held to include those who claim through him or under him. For instance, under Order XXI, Rule 2, Clause (2), it is obvious that the right which is given to the judgment-debtor to apply to the Court for a notice to the decree-holder to show cause why a payment by the judgment-debtor should not be recorded as certified must be necessarily applied to the surety also. In Panduranga Mudaliar v. Vythilinga Reddi I.L.R. (1907) Mad. 537 it was held that the provisions of Section 258 of the Code of Civil Procedure corresponding to the present Order XXI, Rule 2, applied not only to judgment-debtors but also to persons claiming through them or in their right.

12. Under Section 145 of the Code also the surety must be deemed to be a party in the same position as the judgment-debtor for the purposes of the appeal which the judgment-debtor Nilava has filed against the decree. In my opinion, therefore, the appellant is a judgment-debtor for the purposes of Order XLI, Rule 6. I agree with the order passed by my learned brother.


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