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Hiralal Ambalal Vs. Manilal Maganlal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 35 of 1925
Judge
Reported in(1926)28BOMLR517; 94Ind.Cas.645
AppellantHiralal Ambalal
RespondentManilal Maganlal
Excerpt:
.....an appeal in the high court, the defendant obtained, on july 16, 1923, a stay of execution of the decree appealed against on his furnishing a surety for interest from the date of the decree up to june 1924, to the extent of rs. 1,100, the present appellant became a surety on the above terms. when the rule for stay came on for argument on august 9, 1923, the court granted stay on the defendant furnishing security to the extent of rs. 6,000. no such security was furnished. the appeal was dismissed on merits on september 17, 1923. the plaintiff then called upon the surety be pay interest on the decretal amount from the date of the decree up to june 30, 1924, but the executing court allowed interest up to september 17, 1923. on appeal :-; (1) that the order passed by the high court on..........furnish security to the first class subordinate judge for interest on the decretal amount from the date of decree till end of june 1924, the sale should be stayed until the hearing of the said appeal by this court, unless the opposite party showed cause why execution by sale of the attached house should not be stayed within one month from the service of notice. thereafter the present appellant passed a bond whereby he bound himself and his heirs and executors that whatever decree or order finally binding would be passed would be accepted by him and fulfilled. if he neglected to do that, then he the obligor, his heirs and executors, gave a binding to pay the sum up to rs. 1,100 as might be fixed by the court in respect of interest from the date of the decree of the court up to june 1924.....
Judgment:

Norman Macleod, Kt., C.J.

1. This appeal raises an interesting question regarding the liability of persons who pass surety bonds on behalf of appellants who come to this Court asking for a rule for stay of proceedings on what are called the usual terms. On the application by the appellant that the sale of his house in execution of a decree against him might be stayed pending the disposal of an appeal in this Court, it was ordered that the attachment should continue and that on the applicant undertaking not to alienate the property in question and to furnish security to the First Class Subordinate Judge for interest on the decretal amount from the date of decree till end of June 1924, the sale should be stayed until the hearing of the said appeal by this Court, unless the opposite party showed cause why execution by sale of the attached house should not be stayed within one month from the service of notice. Thereafter the present appellant passed a bond whereby he bound himself and his heirs and executors that whatever decree or order finally binding would be passed would be accepted by him and fulfilled. If he neglected to do that, then he the obligor, his heirs and executors, gave a binding to pay the sum up to Rs. 1,100 as might be fixed by the Court in respect of interest from the date of the decree of the Court up to June 1924 On August 9, 1923, the rule came on for argument An order was made that the sale of the appellant's house should be stayed on the applicant giving security to the extent of Rs. 5,000 and if he failed to give that security, the execution should proceed. That is an entirely different order, and in our opinion put an end to the obligation of the present appellant, as he in effect bound himself to pay, if the judgment-debtor made default, such interest as would fall due from the date of the decree till the question, whather the debtor's property should be sold, came before the Court. A data was mentioned, no doubt, in the bond, viz,, June 1924, but that date would clearly be subordinate to any order which would be made by the Court in thy matter of the stay application. The result must be that; the appeal will be allowed to this extent that the surety will only be liable for interest up to August 9, 1923, and not until September 17, 1923, as held by the First Class Subordinate Judge.

2. The cross-objections will be dismissed, There will be no order as to costs.


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