Anantanarayana Ayyar, J.
1. In E. P. No. 13 of 1954 in O. S. No. 69 of 1947 on the file of the Subordinate Judge's Court, Tenali, the plaintiff-decree-holder sought to enforce certain security bonds which had been executed for the defendant by various sureties (before the decree was passed), for mesne profits for various years. The learned Addl. Subordinate Judge, Jenali dismissed the E. P. as against the first surety with costs and ordered execution to proceed as against the other sureties. The plaintiff-decree-holder has filed this civil miscellaneous appeal against that order as regards the first surety alone.
2. The relevant facts of the case are stated correctly in para 2 of the lower court's order and are as follows:
3. The suit O. S. No. 126 of 194G was originally instituted in the court of the Dt. Munsif, Repalli valuing the relief at ten times the land revenue in accordance with the law which was then in force.
The valuation was proper in accordance with the decision of the Madras High Court in Subramania Aiyar v. Rama Aiyar, 54 Mad. L. J, 67: (AIR 1927 Mad 1002) while the suit was pending in that Court, the plaintiff filed an interlocutory application for the appointment of a receiver for auctioning the lease-hold right.
The learned District Munsiff dismissed that interlocutory application in view of the first surety filing security for mesne profits for 1946-47 by executing a bond on 10-7-1946. Subsequently a Full Bensh decision of the Madras High Court was rendered in Kesanna v. Gangappa, 1947-1 Mad LJ 201: (AIR 1947 Mad 297) according to which the valuation already made was not adequate. Accordingly, the plaint had to be revalued and was found to be beyond the pecuniary jurisdiction of the Dt. Munsif, Repally. The latter returned the plaint for presentation to the proper court on the ground that he had no jurisdiction.
That plaintiff received the plaint and represented it before the Subordinate Judge, Tenali who numbered it as O. S. No. 69 of 1947. The suit was ultimately decreed for possession and also for mesne profits for years including 1946-47. The plaintiff decree-holder filed I. A. No. 1737 of 1952 for determination of the mesne profits which were determined accordingly. He sought to recover the amount of mesne profits from the respective sureties. On contest by the first surety, a point for decision was framed by the learned Subordinate Judge as follows:
1. Whether the bond executed by the first surety in favour of the court of the Dt. Munsiff of Repalli must be deemed to have been vacated. The learned Subordinate Judge found this point in favour of the first surety and dismissed the E. P. as against him.
4. The surety bond runs as follows: 'When the plaintiffs applied for the appointment of a Receiver to sell the leasehold rights in the suit schedule lands this Hon'ble Court was pleased to direct security for profits in the suit schedule land to he furnished. Hence this bond is executed.
If the 1st defendant does not succeed in the litigation (Dava) and the plaintiffs are given a decree against the defendant for recovery of profits for this year, I undertake to pay personally myself, without reference to the 1st defendant, and from out of my moveable and immoveable properties, the said profits as may be determined by the Hon'ble Court.'
Section 145 of the Code of Civil Procedure runs as follows:
'Where any person has become liable as surety xxxxx 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.....'
It is clear that the liability of the surety depends on the terms of the bond. The bond executed in this particular case is very wide in scope and is capable of binding the first surety if plaintiffs were given a decree against the first defendant for recovery of profits for 1946-47 irrespective of the Court in which he obtained the decree (and irrespective of how the suit O. S. No. 126 of 1946 ended in the Court of the Dt. Munsiff, Repalle).
5. The learned Advocate for the first surety has relied on various decisions to show that return of the plaint by the Dt. Munsif's Court, Repaile to the plaintiffs terminated the litigation and that the representation in the Sub Court, Tenali started a fresh litigation. But those decisions do not help the first respondent, in view of the fact that the terms of the bond concerned in this case are sufficiently wide to cover the case of a decree passed in a suit in court other than 0. S, No. 126 of 1946 in the court of the Dt. Munsiff, Repaile. It is not necessary to discuss those decisions.
6. The learned Advocate for the first respondent has contended that the order of the lower court directing the first defendant to furnish security was not valid, in view of the fact that the court had no jurisdiction to entertain the suit. This point was not raised in the lower court. The point which was actually raised was different and has been extracted in this judgment. There is a considerable difference between an order being invalid and an order being deemed to have been vacated. Even if the order be invalid, it is the bond and not the order of the Court which is sought to be enforced. We are concerned with the liability of the surety under a bond which he admittedly executed for the benefit of plaintiff for mesne profits which (as ultimately decided by the Sub Court, Tenalli) are really due to the plaintiff, on account of the lands having been actually enjoyed by the first defendant during that year 1946-47. Plaintiff having been kept out of possession, the validity of the bond executed by the first surety, considering the wide scope of its wording, is not affected by the fact that he executed it in pursuance of an order of the learned District Munsif who was found ultimately to have no jurisdiction to entertain the suit. That the bond was executed is beyond dispute. How it came to be executed and under whose order are now of no practical importance.
7. All the same, it may be observed in this connection, that the suit was originally filed in the Dist. Munsif's Court, Repalli, bona fide by the plaintiffs in view of the law prevailing at that time. The valuation was in accordance with the decision of the Madras High Court in 54 Mad LJ 67: (AIR 1927 Mad 1002), which was the law then in force though there were earlier decisions to the contrary. Ultimately after the suit had been filed and the bond taken, a Full Bench of the Mudras High Court in 1947-1 Mad LJ 201 at p. 203: (AIR 1947 Mad 297 at p. 298) gave decision holding that the decision in 54 Mad LJ 67: (AIR 1927 Mad 1002) was wrong and observing as follows:
'Until the decision in 54 Mad LJ 67: (AIR 1927 Mad 1002), this Court had consistently held that, when a person is suing, for a decree for possession of specific immovable property, the Court fee must be paid on the market value of the land notwithstanding that it had formed part of an es-tate paying revenue to the Government .....
This decision not only conflicts with the previous decisions of this Court but also is in conflict with
three decisions of the Allahabad High Court... xxxxx In our judgment the correct opinion was expressed in the cases decided by this Court..... The decision in 54 Mad LJ 67: (AIR 1927 Mad 1002) must be overruled.'
So when the suit was filed and the bond was executed, obviously the plaintiffs as well as the first, surety were under the impression that the Court of the Dist. Munsif had jurisdiction to entertain the suit. Of course, this does not affect the fact that the Full Bench decision in 1947-1 Mad LJ 201: (AIR 1947 Mad 297) had full effect even as regards this very suit, O. S. No. 126 of 1946 and rendering its filing and entertaining in 1956 as an act done without jurisdiction. But it has to be observed that the filing of the suit by the plaintiffs in the District Munsifs Court, Repalle apparently appeared proper in view of the latest decision of the Madras High Court which he accepted and acted upon, though there was scope for a general feeling that there was uncertainty of the law due to that later decision being in conflict with consistent earlier decisions.
8. The learned advocate for the first surety contends that the bond was not valid as it was not accepted by a Court having jurisdiction. Prima facie, the validity of a bond such as concerned in this appeal and the liability under it do not require the acceptance of the bond (by a Court having jurisdiction) as a condition precedent. The learned advocate for the first surety has not produced any decision to support this contention that the bond is not valid as it was not accepted by a Court having jurisdiction. This point was not raised in the lower Court. If the bond had been taken by the plaintiff and filed in the Sub Court or otherwise come to be in the records of the Sub Court, the argument would be of little force. It is not known exactly as to whether the bond was sent to and kept in the file of the Sub Court. Neither party is able to throw any light on the matter. When the learned District Munsif returned the plaint for want of jurisdiction, in the ordinary course, one would expect that tile bond would also have been returned to the plaintiffs and that the latter would have filed it in the Sub Court where the suit was pending, for, it must have been known that if a decree was ultimately passed by the Sub Court enforcement of this bond should normally be in that Court and that there was no need or scope for the learned Dist. Munsif retaining the bond in his Court after he has returned the plaint to the plaintiffs.
9. The bond is enforceable. The reason given by the learned Addl. Subordinate Judge in his order to hold that it was not enforceable is not correct or tenable. The grounds urged by the learned Advocate for the first surety before us to support the order of dismissal by the learned Addl. Subordinate Judge are also not tenable. We, therefore, hold that the bond is enforceable against the first surety in the execution petition, set aside the order of the lower Court and allow the appeal with costs throughout.