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Rajivi Heggadathi Vs. Rathnavathi Heggadathi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 879 of 1978
Judge
Reported inILR1985KAR3038
ActsCode of Civil Procedure (CPC) , 1908 - Sections 145; Code of Civil Procedure (CPC) (Amendment), 1976
AppellantRajivi Heggadathi
RespondentRathnavathi Heggadathi
Appellant AdvocateMohandas N. Hegde, Adv.
Respondent AdvocateA. Jagannatha Shetty, Adv.
DispositionPetition dismissed
Excerpt:
.....and obtained an order of temporary injunction and attachment of 75 cart loads of fuel lying in suit property. attachment was effected and on taking a surety bond the fuel was given to the custody of sureties. suit was dismissed; but no order was passed regarding attached fuel or liabilities of sureties therefor. the sureties did not return the fuel after dismissal of suit. execution petition filed for recovery of attached fuel or its price, was dismissed. in revision :;in view of the clear words adopted in amended section 145 of the code of civil procedure, the court can in the event of a decree passed by it or in the event of an order passed by it, can proceed against the surety personally or against the properties given as security to the court. that is the only change brought..........obtained a temporaryinjunction and an order for attachment of 75 cart loads of fuel lying in the suit property. the amin attached 75 cart loadsof fuel and he on taking a surety bond in the name of the court released the said attached fuel and gave it in the custody of judgment-debtors 2 and 3, who executed the surety bond. the suit came to be dismissed on 16-8-1973. after the dismissal of the suit, the sureties did not return the fuel to the decree holder. thus, she is entitled to get back 75 cart loads of fuel from the sureties by filing theexecution.2. the judgment-debtors contended that there was no decree or order passed by the court at all. thereforequestion of forfeiting the surety bond does not arise and they are not liable to pay any sum.3. the learned counsel sri hegde for the.....
Judgment:
ORDER

Kulkarni, J.

The brief facts are :

1. The first judgment debtor who was the plaintiff in O.S. No. 89/1971 filed a suit for injunction against the present petitioner and another. She obtained a temporaryinjunction and an order for attachment of 75 cart loads of fuel lying in the suit property. The amin attached 75 cart loadsof fuel and he on taking a surety bond in the name of the Court released the said attached fuel and gave it in the custody of judgment-debtors 2 and 3, who executed the surety bond. The suit came to be dismissed on 16-8-1973. After the dismissal of the suit, the sureties did not return the fuel to the decree holder. Thus, she is entitled to get back 75 cart loads of fuel from the sureties by filing theexecution.

2. The judgment-debtors contended that there was no decree or order passed by the Court at all. Thereforequestion of forfeiting the surety bond does not arise and they are not liable to pay any sum.

3. The Learned Counsel Sri Hegde for the revision petitioner relied on Section 145 of the Code of Civil Procedure which reads as :

'Where any person has furnished security or given a guarantee -

(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 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 in the manner herein provided for the execution of decrees, namely :

(i) if he has rendered himself personally liable, against him to that extent;

(ii) if he has furnished any property as security by sale of such property to the extent of .the security ;

(iii) if the case falls both under clauses (i) and (ii), then to the extent specified in those clauses,

and such person shall be deemed to be 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.'

Before amendment the old Section 145, C.P.C., read as :

'(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 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 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.'

Therefore, the amended section has brought about the amendment only to the extent that the surety in the case of a decree or an order passed by the Court can be proceeded with either personally or even against the properties of the sureties. The amended section by inserting in its opening part the words 'given a guarantee' has now done away with, the view expressed in some decisions that the provisions of Sections 133 to 139 of the Contract Act did not directly apply to the surety bonds which provide such guarantee. The learned author in Mulla's Code of Civil Procedure, 14th edition has stated :

'Instead of leaning en the inherent jurisdiction of the Court and not under this section, the Amendment Act, 1976 has now introduced clauses (ii) and (in) which empower the Courts to execute the decree where the surety has furnished any property as security by sale of such property to the extent of the security and where thecase falls under clause (i) and clause (ii) i.e., where the surety has rendered himself personally liable and as further security has furnished some property, to the extent specified in the security bond. It is submitted that since express power has now been conferred on the Court to execute the decree against the surety by sale of the property upon which the charge is made, no questions relating to the provisions of O. 34 or the provisions of the Transfer of Property Act can any more arise. Such a sale in execution can now be ordered under this section and not under the inherent power of the Court. The sale would be directed in the manner provided for in the Code for execution of decrees and the surety would be deemed to be a party within the meaning of Section 47'.

Therefore, in view of the clear words adopted in amended Section 145 of the Code of Civil Procedure, the Court can in the event of a decree passed by it, or in the event of an order passed by it, can proceed against the surely personally or against the properties given as security to the Court. That is the only change brought about by the amended Section 145 of the Code of Civil Procedure. Thus, it becomes crystal clear that Section 145, C.P.C. would come into play only if there is a decree or an order passed by the Court. If there is no decree or order passed by the Court, Section 145, C.P.C. will not be attracted at all. When the suit isdismissed, there is no decree or order passed by the Court. In this case the suit has been dismissed. What should happen to the attached properties has not been touched at all by the Court which dismissed the suit. Thus, there is no order passed by the Court at all regarding the attached fuel or the security bonds executed by sureties. There is a decision of this Court reported in Shivaswamy -v.- M.B. Nagarajainba, 1965 Mys. L.J. 176 ShN. Item No. 320 (CRP 600/1964 DD. 21-7-1955) thus :

'Section 145 - Surety's liability, when comes to an end - Before the surety could be made liable, it must be shown that under the terms of the bond he became liable.

In a partition suit some cattle in possession of Parvathamma, Deft. 4 were the subject matter of the suit. A commissioner was appointed to prepare inventory of the moveables in the possession of Deft. 4. The Trial Court then directed that in order that Deft. 4 might retain possession of the said cattle, she should furnish security to the Court. The petitioner (Deft. 3) executed a surety bond as under.

'In the final decision of this Court or earlier, if the Court orders or decrees that the cattle described in the bond should be delivered to the plaintiffs or any other party, and if the said Parvathamma (Deft.4) fails to comply with the said order or decree by delivering the cattle, the surety binds himself to pay such amount as the Court may deterjuiae.' During the pendency of the Deft. 4 died and her legal representatives not having been on record within the time, the suit abated against her. Subsequently even as against the rest of the defendants the suit was dismissed. About 4 years thereafter the plaintiff filed I.A. 42 for enforcement of the surety bond against Deft. 3 (the surety) who contended among others that since there was no decree directing Deft. 4 to deliver the cattle, there was nothing to enforce against him and that the application was barred by limitation. Rejecting the contention of the surety the Trial Court directed him to produce certain cattle or to deposit in Court a certain sum of money as per the bond.Held, that the trial Judge without dealing with the material contentions raised by the petitioner-defendant 3, proceeded to discuss certain legal questions which had no relevance to the case. Under the said bond the petitioner as surety became liable to pay the amount determined by Court if Parvathamma defendant-4 did not deliver the cattle as per decree of the Court. There was no decree at all since the suit itself had been dismissed and even before the suit was dismissed the suit against Parvathamma had abated. In view of the dismissal of the suit and there being no order or decree against Parvathamma (Deft. 4) to deliver cattle to the plaintiffs or any other parties in the suit, the liability of the surety came to an end. Even on the question of limitation since the application was filed more than 3 years after the termination of the suit, it was clearly barred under Article 182 Limitation Act.'

In S.M. Kunju Moyee Desai -v.- Akshoy Kumar Das, : AIR1961Cal43 it has been held that a surety would not be liable merely because by the surety bond he has made himself liable to pay a certain sum to the plaintiff if the defendant lost the suit. What can be executed against the surety is the decree or order passed by the Court and it can be executed to the extent to which the surety has rendered himself personally liable, unless there is an order capable of execution for the recovery of a sum of money for which the security bond had been furnished, Section 145 have no application.

4. As already stated above, there is no decree or order passed by the Munsiffin O.S. No. 89/1971 because the suit itself had been dismissed. While dismissing the suit, theMunsiff has not passed any order touching the seized or attached fuel or touching the liability of the sureties in the matter. Therefore, in the absence of any decree or order in the said suit, the present execution filed against the sureties for the recovery of the attached fuel or its price cannot be maintained. Therefore, the Trial Court was perfectly justified in dismissing the execution. Thus, there is no merit in the revision. It is accordingly dismissed.


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