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Shoukat Mohammad Hatrot Vs. Narayana Govinda Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal No. 48 of 1973
Judge
Reported inILR1974KAR1382; 1974(2)KarLJ376
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 and 145 - Order 41, Rule 6
AppellantShoukat Mohammad Hatrot
RespondentNarayana Govinda Naik and ors.
Appellant AdvocateK.A. Swamy, Adv.
Respondent AdvocateS.K. Kulkarni, Adv.
Excerpt:
- code of civil procedure, 1908. section 16, proviso,: [k. ramanna, j] territorial jurisdiction immovable property situated beyond jurisdiction of court held, though the court cannot grant relief in rem still it can entertain a suit where relief so sought can be obtained through personal obedience of defendant. -- sections 16(d), 20 territorial jurisdiction partnership firm carrying business of quarrying and selling rough granite situated at bangalore and two of defendants partners are also residents of bangalore held, no doubt courts at chitradurga where quarrying business was obtained had jurisdiction to try suit but in view of section 16(d), cpc read with proviso to section 16 and section 20, courts at bangalore also have jurisdiction to try the suit. .....are parties, thatthe property charged be sold, is made inthe context of the finding that the suretybond could be enforced in that case onlyby a suit since sec. 47 c. p. c, was heldinapplicable.4. their lordships of the privy council also considered the contention of the sureties in that case to the effect that the liability undertaken by them cannot be enforced since the surety bond was in the name of the court and not in the name of any officer of the court. their lordships rejected that contention and held that though the court is a juridical person (?), there is an unquestioned liability and there must be some mode of enforcing it, and that the only mode of enforcing must be by the court making an order that the property charged be sold unless before a day named the sureties.....
Judgment:

1. The appellant is the second Judgment-debtor who was one of the sureties who executed a bond under Order 41 Rule 6 C. P. C. in the form presented in Appendix 'G'. But the bond was executed in the name of the Court and not in the name of the Presiding Officer or any Officer of the Court.

2. It is urged by Mr. K. A. Swamy, firstly that since the bond is not executed in the name of the Presiding Officer or any other officer of the court, the court being not a juridical person, the bond is inexecutable. Secondly, it is urged that the surety bond cannot be enforced in the execution proceeding, but that it can be enforced only in a separate suit filed against the sureties.

3. He has relied on the decision inAIR 1919 PC 55 = 46 Ind App 228 (Raghubar Singh v. Jaj Indra Bahadur Singh).In that case, the surety bond created a chargeon the immoveable property but there was nopersonal liability undertaken by the surety.Their Lordships of the Privy Council heldthat since there was no personal liability incurred under the surety bond, though itcreated a charge upon the immovable property, Section 145 C. P. C. was not applicable. Their Lordships further held that Sec-tion 47 C. P. C. was not applicable sincethe surety was not a party to the suit whichended in a decree. But in the present case,the surety bond imposed a personal liability,on the sureties. Hence, Section 145 C. P. C.would be applicable to the facts of the present case. Consequently, the sureties mustbe deemed to be parties to the suit withinthe meaning of Section 47 C. P. C. Hence,it is not necessary for a separate suit beingfiled against the surety. The observation ofthe Privy Council in the above said case thatthe only mode of enforcing the liabilitycreated by the surety bond is by the courtmaking an order in the suit upon an application to which the sureties are parties, thatthe property charged be sold, is made inthe context of the finding that the suretybond could be enforced in that case onlyby a suit since Sec. 47 C. P. C, was heldinapplicable.

4. Their Lordships of the Privy Council also considered the contention of the sureties in that case to the effect that the liability undertaken by them cannot be enforced since the surety bond was in the name of the court and not in the name of any officer of the court. Their Lordships rejected that contention and held that though the court is a juridical person (?), there is an unquestioned liability and there must be some mode of enforcing it, and that the only mode of enforcing must be by the court making an order that the property charged be sold unless before a day named the sureties find the money. Such an order had to be made according to the facts of that case in the suit. But in the present case, Section 47 C. P. C. is applicable. Such an order can be made and has been made in the execution proceeding. It is also the view taken by this court in (1968) 2 Mys LJ J24 (Shakarappa v. Daniel).

5. This appeal therefore fails and is dismissed with cost.

6. Appeal dismissed.


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