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Jaladu AmanThe Raghurama Arya Vs. Jaladu Navalaxmi Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 1 of 1972
Judge
Reported inAIR1973AP194
ActsCode of Civil Procedure (CPC), 1908 - Sections 151
AppellantJaladu AmanThe Raghurama Arya
RespondentJaladu Navalaxmi Devi
Appellant AdvocateC. Poorniah, Adv.
Respondent AdvocateV. Parabrahmam Sastri, Adv.
Excerpt:
civil - execution of decree - section 145 and 151 of code of civil procedure, 1908 - security bond executed by judgment debtor in favour of presiding officer - whether decree holder can enforce such bond before same being assigned in his favour by presiding officer - held, decree holder cannot enforce such bond unless presiding officer assign same in his favour. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on..........j.,1. the short question that arises in this civil miscellaneous appeal is whether the security bond executed in the name of a particular presiding officer of the court by the judgment-debtor can be enforced against him by way of execution proceedings without that bond being assigned by that officer in favour of the decree-holder.2. the facts leading to filing of the civil miscellaneous appeal are these; the decree-holder filed an application under order 21, rules 64 and 66 civil p. c. for sale of the properties offered as security in the bond dated 21-7-1962 executed by the judgment-debtor. the judgment-debtor resisted the application on the ground that as the bond has not been assigned by the particular presiding officer, in whose name it was executed in favour of the decree-holder,.....
Judgment:

Obul Reddy, J.,

1. The short question that arises in this Civil Miscellaneous Appeal is whether the security bond executed in the name of a particular presiding officer of the Court by the judgment-debtor can be enforced against him by way of execution proceedings without that bond being assigned by that officer in favour of the decree-holder.

2. The facts leading to filing of the Civil Miscellaneous Appeal are these; the decree-holder filed an application under Order 21, Rules 64 and 66 Civil P. C. for sale of the properties offered as security in the bond dated 21-7-1962 executed by the judgment-debtor. The judgment-debtor resisted the application on the ground that as the bond has not been assigned by the particular presiding officer, in whose name it was executed in favour of the decree-holder, the application is not maintainable. The only remedy available, according to him, is to get the bond assigned and lay a separate suit on the strength of it.

3. The Subordinate Judge held, that while the bond cannot be enforced under Section 145, Civil P. C., it could, however, be enforced in execution proceedings under Section 151, Civil P. C. And no separate suit need be filed. In that view, he allowed the application. It is against that order that the judgment debtor has preferred this Civil Miscellaneous Appeal.

4. Column 3 of the bond which is relevant for the purpose of discussion, reads, ' a person in whose favour executed ; Sri Mirza Raja Ali Baig, B. A. LL. B., Subordinate Judge, Machilipatnam ' Sri Mirza Raja Ali Baig was not there as presiding officer at the date when the present application was filed. The terms of a security bond it is needless to emphasise must be construed strictly ; When it is executed in favour of a particular Presiding Officer naming him, then that bond cannot be enforced without that named officer assigning the same in favour of the decree-holder. When the terms of the bond are clear and admit of no ambiguity, the question of exercising the Court's inherent powers to enforce the bond by way of execution proceedings will not arise.

5. The decision relied upon by the lower Court in Janaki Ammal v. Krishna Swamy, : AIR1960Mad324 was one where the bond was executed in favour of ' the Subordinate Judge, Coimbatore ' and not in favour of a particular Officer, who functions as the Subordinate Judge there. It is for that reason that the learned Judge held that even, if Section 145, Civil P. C. Is not applicable, the Court can exercise its inherent powers under Section 151, Civil P. C.

6. The other decision in T. Bapanna v. Devata China Yerakayya, : AIR1966AP151 on which reliance was placed by the lower Court was also one where the security bond was not executed in favour of a particular officer, who happened to be for the time being the presiding officer of the Court, and therefore it was held by the Division Bench of this Court, that although the security bond as such cannot be executed under Section 145, Civil P. C. Which seems to apply to personal liability, Section 151, Civil ,P. C. Comes to the rescue of the decree-holder who could request the Court to enforce the bond in the exercise of its inherent jurisdiction, when the bond is executed in favour of the Court.

7. Our attention has not been invited to any case by the learned counsel for the respondent where the inherent powers of the Court have been exercised when the security bond is executed in favour of a particular officer who happened to function for the time being as the presiding officer of the Court.

8. Chief Justice Rajamannar in Kambham Ramamurthi v. Sagi Raju Tirupathiraju, AIR 1949 Mad 152 sitting with Satyanarayana Rao, J. While considering the effect of the security bond executed in favour of the Court itself and not in favour of any named officer of the Court, recalled the ruling of the Judicial committee in Raj Bahadur Singh v. Jai Indra Bahadur Singh, ILR 42 All 158 = ( AIR 1919 PC 55 ) where it was observed :

'It appears that in the High Court at Calcutta, in instruments of this nature, the parties bind themselves to some named officer of the Court, and that, if the instrument has to be put in suit, either the officer sues or he under order of the Court assigns the security to the party who wishes to avail himself of it; but this instrument does not purport to bind the sureties to any individual officer or to any one.

It is suggested that they are bound to the Court. But the Court is not juridical person. It cannot be sued. It cannot take property and as it cannot take property it cannot assign it. '

This is not a case where the surety is bound to the Court or executed the bond in favour of the ' Subordinate Judge ', but one where the surety bound himself to a named presiding officer of the Court and as such, Section 151 cannot be called in aid. Chief Justice Rajamannar, therefore, pointed out that if the security bond had been executed in favour of an officer of Court, then the obvious procedure was to obtain an assignment of the bond and to file a suit on it. The learned Chief Justice also regretted that in spite of the clear pronouncement of the Judicial Committee in ILR 42 All 158 = ( AIR 1919 PC 55 ) as early as 1919 and in spite of the form contained in the Civil Rules of Practice relating to bonds to be executed by the guardians under the Guardians and Wards Act, security bonds should continue to be taken not in favour of the Presiding Officer or any other officer of the Court, but in a form in which the bonds cannot be said to be executed in favour of any body unless by implication they must be deemed to have been executed in favour of the Court, which as has been pointed out by Privy Council is not a juridical person capable of assigning such bonds. '

9. The decision in Lalita Prasad Chowdary v. Syed Muhammad Mansoor, ( 1939 ) ILR 18 Pat 719 sought to be relied upon by the learned counsel for the respondent does not render any assistance, for nowhere do we find that that was a case where the bond was executed in favour of a named presiding officer of the Court. The bond there was executed using the designation of the Presiding Officer and not in the name of the particular individual officer, who happened to preside over the Court for the time being.

10. We are, therefore, of the view, having regard to the pronouncement of the judicial committee in Raja Bahadur Singh v. Jai Indra Bahadur Singh, ILR 42 All 158 = ( AIR 1919 PC 55 ) which was once again emphasized by Chief Justice Rajamannar in Khambam Ramamurthi v. Sagiraju Thirupathiraju, AIR 1949 Mad 151 that when the bond has not been assigned by the named Presiding Officer in favour of the decree-holder, it cannot be enforced by way of execution proceedings.

In the result the order of the Court below is set aside and the appeal allowed, but in the circumstances without costs.

11. Appeal allowed.


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