Skip to content


Mente Subba Rao Vs. Penmetsa Venkataraju and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. Nos. 90 and 91 of 1962 and 178 of 1963
Judge
Reported inAIR1964AP339
ActsCode of Civil Procedure (CPC) , 1908 - Sections 145 and 151 - Order 21, Rule 64
AppellantMente Subba Rao
RespondentPenmetsa Venkataraju and ors.
Appellant AdvocateK. Suryanarayana, ;Y.B. Tata Rao, Advs. in A.A.O. Nos. 90 and 91 of 1962 and ;K.V. Ayyappa Sastry, Adv. in A.A.O. No. 178 of 1963
Respondent AdvocateP.P. Surya Rao, Adv., K. Suryanarayana, ;Y.B. Tata Rao, Advs. in A.A.O. No. 178 of 1963 and ;K.V. Ayyappa Sastry, Adv. in A.A.O. Nos. 90 and 91 of 1962
Excerpt:
.....bond imposing personal liability and items of property - decree finally confirmed by high court - decree holder again filed execution application under section 145 and order 21 rule 64 - application dismissed - appeal filed - section 145 can be invoked only for enforcing personal liability created by security bond - court is competent to proceed against properties in execution in exercise of inherent powers under section 151 - court can also give directions for realization of decree by selling of property in case of sureties failed to deposit amount in court before particular date. - - further, in a case like this it is open to the decree-holder to relinquish the charge and proceed to enforce the personal liability by attachment end sale of the decreed property. for the reason that..........in the court of the subordinate judge, narsapur and obtained a decree as prayed for. when the decree-holder put his decree in execution, the judgment-debtor carried the matter in appeal to the high court and moved for stay of execution of the decree, and, as a condition to the grant of stay, he deposited costs of the decree sand a security bond was executed by himself, his sons end wife for the due performance of the decree in question. the security bond imposed a personal liability and also hypothecated eight items of property. the decree of the subordinate judge's court was finally confirmed by the high court and the judgment-debtor's appeal was dismissed.3. thereafter, the decree-holder, i.e., the appellant in c. m. a. nos. 90 and 91 of 1962, filed e. a. no. 47 of 1960 under.....
Judgment:

Chandra Reddy, C.J.

1. The subject-matter of these appeals and the parties are the same. Therefore, all the appeals could be dealt with together. The facts leading to these appeals lie in a narrow compass and could be stated as follows:

2. The appellant in C. M. A, Nos. 90 and 91 of 1963, who is the first respondent In C. M. A. No. 178 of 1963, brought a suit for recovery of a sum of Rs. 6,845/- and odd against the first respondent in the first two appeals and six others impleaded as pro forma defendants in the Court of the Subordinate Judge, Narsapur and obtained a decree as prayed for. When the decree-holder put his decree in execution, the judgment-debtor carried the matter in appeal to the High Court and moved for stay of execution of the decree, and, as a condition to the grant of stay, he deposited costs of the decree sand a security bond Was executed by himself, his sons end wife for the due performance of the decree In question. The security bond imposed a personal liability and also hypothecated eight items of property. The decree of the Subordinate Judge's Court was finally confirmed by the High Court and the judgment-debtor's appeal was dismissed.

3. Thereafter, the decree-holder, i.e., the appellant in C. M. A. Nos. 90 and 91 of 1962, filed E. A. No. 47 of 1960 under Section 145 and Order 21, Rule 64 C. P. C. to enforce the security given by the judgment-debtor, his sons and wife to sell the property and realise the decree debt.

4. The learned Subordinate Judge dismissed this petition. After referring to Amulya Ratan v. Presad Chandra Kar, AIR 1936 Cal 143 and Pulavarti Satyam v. Kuchibhotla Satyanarayana, AIR 1936 Mad 953, the learned Judge observed as follows:

'A bond carrying personal liability by the surety and given under Order 32, Rule 6, being for the protection of the minor's interest against his guardian is not a bond which is enforceable, by execution in the manner provided by Section 145. The bond being given in pursuance of an order made under Order 32, Rule 6, suit is the proper remedy to enforce it.'

In Babulal v. Hyderabad Municipal Corporation, : AIR1961AP413 the Division Bench of our High Court has held that the object of Section 145 C. P. C. is to provide a summary remedy for the enforcement of the liability of the Security who has given security for any of the purposes enumerated in the Section. But for this Section, the party for whose benefit the security has been given would have to file a separata suit to enforce the sacurity.

5. C. M. A. No. 90 of 1962, is directed againstthis order.

6. It is seen that the learned Subordinate Judge has not considered the real questions that presented themselves before him, namely, whether the security bond was executed in favour of the Court, whether an order could be passed for realising the amount in the exercise of inharent powers under Section 151 C. P. C., whether, in any event, the personal liability created by the instrument could be enforced under Section 145 C. P. C. and whether a bond of this type could form the basis of a suit.

7. This led the decree-holder 'to apply far assignment of the security bond in E. A. No. 197 of 1961. This petition was also dismissed for the reason that the bond being in favour of the Subordinate Judge, it was not assignable, the Court, being not a iuristic Person. The learned Judge based his decision on Janaki AmmaI v. Krishnaswami Mudaliar, : AIR1960Mad324 and Ramamurthi v. Sagiraju, AIR 1949 Mad 152 C. M. A. No. 91 of 1962 is filed against this order.

8. Foiled in his attempts to get any relief in these two petitions, the decree-holder filed E. A. No. 32 of 1961 under Sections 145 and 151 C. P. C. to attach the property offered as security and to sell the same for realisation of the decree-debt etc., and, if necessary, to attach the first judgment-debtor's immoveables and for sale and for arrest of the judgment-debtor. The Subordinate Judge (the successor of the Officar who dismissed E. A. Nos. 47 of 1960 and 197 of 1961) granted In substance the relief asked for. Against this order, the sureties have brought an appeal (C. M. A. No. 178 of 1963).

9. It is urged by Sri Ayyappa Sastry, learned counsel for the appellants in C. M. A. No. 178 of 1963, that Section 145 C. P. C. does not authorise a Court to proceed against the properties Offered as security, that it is only personal liability that could be enforced under that section and that as regards the charge the only remedy available to the decree-holder is to base a suit on the document.

10. Before we consider this contention, it is necessary to extract the terms of Section 145 C. P. C. as also Section 151 C. P. C., which has preserved the inherent powers of Courts which were possessed before the enactment of the Code.

11. Section 145 C. P. C. is in these words;

'Where any person has become liable as surety--(a) far 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 he 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 deamed 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.'

Section 151 C. P. C. recites :--

'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.'

12. It is manifast from Section 145 C. P. C. that a security bond could be enforced under that section only to the extent that it imposes a personal liability, since it is specifically stated that the decree could be executed against a surety to the extent he has rendered himself personally liable. So, that section does not confer any authority on the Court to execute the decree against the charged properly. That being so, it is needless to refer to the decisions called in aid by the learned counsel for the sureties to substantiate that Section 145 C. P. C. could not be resorted to for realising the debt out of the properties given as security.

13. In this case, Section 145 C. P. C. could be invoked by the decree-holder for enforcing only the personal liability created by the document. Indisputably, this is both an instrument of charge and also a bond imposing personal liability. Further, in a case like this it is open to the decree-holder to relinquish the charge and proceed to enforce the personal liability by attachment end sale of the decreed property.

14. Apart from this relief, it is competent for the Court to proceed against the properties in execution in the exercise of inherent powers and to give directions for realisation of the decree by selling the property in case the sureties could not deposit the amount in Court before a particular date. This principle applies to the instant case particularly, having regard to the fact that the document was executed not in favour of any person or in the name of the Presiding Officer but in favour of the Court. No suit could be filed by a Court which is not a juristic person nor could it be assigned in favour of the decree-holder. Therefore, the only course left open to the decree-holder is to invoke the inherent jurisdiction of the Court and the Court could direct the enforcement of the liability undertaken by the surety if the conditions thereof are not fulfilled, namely, in depositing the decree amount in Court. That such a procedure is permissible could be gathered from decided cases.

15. In Raj Raghubar Singh v. Jai Indra Bahadur Singh, 38 Mad LJ 302 : (AIR 1919 PC 55), it was ruled by Their Lordships of the Judicial Committee of the Privy Council that when a document was providing security in favour of the Court to restore mesne profits in restitution proceedings, one of the questions that arose was whether the applicant, who sought restitution, could get the relief by way of sale of the property given as security in the surety bond. Their Lordships, while holding that no reliance could be placed upon Section 147 C. P. C, and Section 144 C. P. C. for the reason that the surety was not a party to the application made against the defeated party for ascertainment of mesne profits, observed that the proper way of dealing with the case before them was to consider that there were three steps, one of them being, to 'order that the property be sold unless the sureties pay'.

16. Subsequently, the Judicial Committee of the Privy Council applied this principle in Ronani Ramandhwaj Piasad Singh v. Har Prasad Singh, (1943) 2 Mad LJ 460 : (AIR 1943 PC 189). The head-note, which contains the principle with which we are here concerned, runs as follows:

'Any instrument which does not bind the sureties to any individual can only be enforced by the Court making an order in the suit upon an application to which the surctias are parties, that the property charged be sold unless before a day named the sureties find the money.'

17. Though the question arose in both these cases in restitution proceedings, the rule stated by Their Lordships governs the presemt case.

18. It is worthy of note that the Privy Council in 38 Mad LJ 303 : (AIR 1919 PC 55), referred with approval to the judgment of the Allahabad High Court in Janki Knar v. Sarup Rani, 1LR 17 All 99. In that case, a bond was executaed to obtain stay of execution of decree under Section 253 of the Code of Civil Procedure, 1882, which is the predecessor of Order 41, Rule 5 of the present Code. It was contended there that Section 99 of the Transfer of Proparty Act was a bar to enforcing the bond in so far as it related to immoveabie property. This contention was negatived on the ground that Section 99, did not govern the enforcement, by a process of the Court, of a security bond given to the Court for the per-formance of its decree.

19. To a like effect is the judgment of the Madras High Court in Thirumalai v. Ramayyar, ILR 13 Mad 1. In that case, security was given on behalf of a person who was preferring an appeal for the due performance of the decree of the appellate Court. It was held that the decree of the appellate Court could be enforced against the sureties in execution proceedings under Section 253 and Section 144 C. P. C.

20. Recently, it was decided by a single Judge of the Madras High Court in : AIR1960Mad324 relied on by the learned Subordinate Judge that a security bond axecuted in favour of an officer of Court Was not executed in favour of a particular person either by designation or by name and was not as such assignable, that even if such a case did not come within Section 145 C. P. C., the Court had ample jurisdiction in its inherent powers to enforce such a bond by way of execution in the same proceedings to realise the money and that there was no necessity to bring a separata suit to enforce the bond.

21. The judgment of a Division Bench of this Court in : AIR1961AP413 , relied-on by the sureties does not lay down any proposition contrary to the one indicated above. That was the case of a bond which recited inter alia that the money that might be found due under orders of Court could be recovered from the surety personally and from property. The applicant therein filed a petition for enforcing persona I liability invoking Section 145 C. P. C. The learned Judges held that Section 145 could be felted on only to enforce the personal liability but the charge created under the document could not be enforced under Section 145 C. P. C. Further, in that case the respondent did not seek to enforce the charge created on the immovable property but only wanted to enforce the persona liability undertaken by the surety. He had requested the Court to direct the judgment-debtor to deposit the amount and in case he failed to do so, to attach the property and auction the same and give, the decretal amount to the decree-holder. In such a situation, the learned Judges stated that Section 145 C. P. C. would be applicable. It is only in passing that they made the following observations :

'But if the respondent had tried to enforce the charge created on the property, then it can rightly be said that Section 145 C. P. C. would not apply and his only remedy was by way of suit.'

That was not 3 case where the decree-holder had recourse to Section 151 of the Code of Civil Procedure requesting the Court to exercise its inherent powers to realise the decrae by proceeding against the properties. It is worthy of note that, Manohar Pershad J., who spolie for the Court, referred to various decisions on the point which support the view we have taken. The learn ed Judge also referred to a decision of the Bombay High, Court in Gurushantappa v. Gurava, AIR 1926 Bom 279 wherein Macieod C. J., and Coyajee J., held that where wider a bond of suretyship the surety of a judgment-debtor mortgages his property as security for his liability, on dafault bay the judgment-debtor to pay, the decree-holder could enforce the security against the property under Section 145 without following the procedure provided for by Order 34, Rule 14 C. P. C. The learned Judge also extracted the following passage from the decision of the Allahabad High Court in Mukta Prasad v. Mahadeo Prasad, ILR 38 All 327 : (AIR 1916 All 57), which contains the dictum that lends support to the opinion expressed by us.

'It may be that the decree-holder would have been entitled to bring a separate suit for the enforcement of the hypothecation contained in the security bond and would have been in a stronger position if tie had done so. I do not decide this point one way or the other. It seems to me, however, that the liability which it is sought to be enforced' by the present application for execution is a personal liability and nothing else. There is, I repeat, no decree in existence for the sale of this property, and it can only be attached and brought to sale, under the terms of the simple money decree now under execution, by reason of the liability incurred by the surety and under the provisions of Section 145 of the Code of Civil Procedure. I call this enforcing the surety's liability to the extent to which the has rendered himself personally liable and to no greater extent. It seems to me, there-Tore, that there is no force in the suggestion that there has been any material change in the law with regard to the particular point in controversy between the Allahabad and the Calcutta High Courts. The question is whether the provisions at Order 34, Rule 14 prevent these particular properties from being taken in execution at all. To this question, my answer would be that the said rule only applies when the mortgagee has obtained a decree for payment of money in satisfaction of a claim arising under the mortgage. In the present case, the appellant has not obtained a decree against Mahadeo Prasad at all. He has obtained a decree against other persons, and Mahadeo Prasad has become liable to have his property seized in satisfaction of the decree by reason of special covenant entered into by him which covenant under the provisions of Section 145 Civil Procedure Code, can be enforced in the execution department without any decree being obtained against Mahadeo Frasad at all. It therefore seems to me that the provisions of Order 34, Rule 14 has no application and cannot be put forward as a bar to the present proceedings'.

22. Thus, : AIR1961AP413 does not render much assistance to the appellant in C. M. A. No. 178 of 1963. It follows that the order in E. P. No. 32 of 1961 in O. S. No. 79 of 1948 is substantially correct, and does not call for interference. C. M. A. No. 173 of 1963 is therefore dismissed.

23. The parties are agreed that the sureties should be allowed time till 31-12-1963 for depositing the decree amount. In default thereof, so much of the charged properties as may be necessary to satisfy the decree alone should be sold and nothing more.

24. In the result, C. M. A. No. 90 of 1952 is allowed to the extent indicated in the order in C. M. A. No. 178 of 1963.

25. C. M. fl. No. 91 of 1962 is not pressad. It is, therefore, dismissed. The parties will bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //