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Sahu Ram Kishore Vs. Seth Chiranji Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1933All68
AppellantSahu Ram Kishore
RespondentSeth Chiranji Lal
Excerpt:
.....before us, one ram kishore, by execution of a bond, dated 29th january 1923, that if the suit of gauri shankar was dismissed and chiranji lal suffered any loss, the loss might be made good from certain specified properties of ram kishore. gauri shankar's suit failed both in the court of first instance and ultimately in the high court, on 9th november 1928. chiranji lal thereafter took out execution of decree no. it is true that if the first sale had held good, it would have wiped out the entire debt and there would have been no occasion for chiranji lal to ask for the recovery of the small sum that remains unpaid. there can be no doubt that the delay due to gauri shankar's suit resulted in an increase of the interest on the decretal amount and the interest for the period of 18 months..........others, being decree no. 424 of 1920, which was made final on 20th august 1921. to this suit one gauri shankar was a party. gauri shankar for some reason with which we are not concerned filed suit no. 514 of 1922 and made an application for an injunction directing that the sale fixed for 18th january 1923 should not be held at the instance of the decree-holder. chiranji lai, pending the disposal of the suit. the court ordered that if gauri shankar furnished security to the amount of rs. 5,000, the sale should be stayed. an undertaking was given by the appellant before us, one ram kishore, by execution of a bond, dated 29th january 1923, that if the suit of gauri shankar was dismissed and chiranji lal suffered any loss, the loss might be made good from certain specified properties of.....
Judgment:

Mukerji, Ag. C.J.

1. All the necessary facts of this case could not be discovered when the appeal was before us on a former occasion, and we had to adjourn the arguments for summoning of records. The facts materially are briefly these. One Chiranji Lal, the respondent before us. had a mortgage decree against Keshab Deo and others, being Decree No. 424 of 1920, which was made final on 20th August 1921. To this suit one Gauri Shankar was a party. Gauri Shankar for some reason with which we are not concerned filed Suit No. 514 of 1922 and made an application for an injunction directing that the sale fixed for 18th January 1923 should not be held at the instance of the decree-holder. Chiranji Lai, pending the disposal of the suit. The Court ordered that if Gauri Shankar furnished security to the amount of Rs. 5,000, the sale should be stayed. An undertaking was given by the appellant before us, one Ram Kishore, by execution of a bond, dated 29th January 1923, that if the suit of Gauri Shankar was dismissed and Chiranji Lal suffered any loss, the loss might be made good from certain specified properties of Ram Kishore. This undertaking was given and the bond was filed in Suit No. 514 of 1922 instituted by Gauri Shankar buf, not in the course of the execution proceedings in Decree No. 424 of 1920. Gauri Shankar's suit was heard and the execution proceedings in Decree No. 424 of 1920 was stayed. Gauri Shankar's suit failed both in the Court of first instance and ultimately in the High Court, on 9th November 1928. Chiranji Lal thereafter took out execution of Decree No. 424 of 1920 and got the property sold twice. The first sale that was held on 5th December 1924 was for Rs. 68,000, but the sale was set aside and the sale that was ultimately held on 3rd March 1926 was for Rs. 55,000 only. The result was that the money received by the sale was not enough to satisfy the decree in its entirety. A small balance of Rs. 1,000 odd was left and Chiranji Lal obtained a personal decree against his judgment-debtors for the balance due. This decree he could not successfully execute because the judgment-debtors had nothing out of which the decree-holder could be paid.

2. Thereupon Chiranji Lal proceeded to execute Decree No. 424 of 1920 against Ram Kishore. Ram Kishore's objections were many. One was that the decree-holder suffered no loss and he was not liable to pay anything. Another ground was that the decree could not be executed against him, at any rate, by sale of the property mortgaged. Both the points which did not find favour with the Court below have been repeated here. In our opinion the first point has no force. It is true that if the first sale had held good, it would have wiped out the entire debt and there would have been no occasion for Chiranji Lal to ask for the recovery of the small sum that remains unpaid. But it was no fault of Chiranji Lal that the sale was set aside at the instance of the judgment-debtor. There can be no doubt that the delay due to Gauri Shankar's suit resulted in an increase of the interest on the decretal amount and the interest for the period of 18 months and 25 days during which the suit was pending ought to be made good by Ram Kishore. We say this without prejudice to the merits of the case that may be hereafter instituted by Chiranji Lal against Ram Kishore. The next point is whether Decree No. 424 of J.920 may be executed against Ram Kishore. We are of opinion that it cannot be. The undertaking that was given was given in Suit No. 514 of 1922, and there is nothing on the record of the proceedings in Suit No. 424 of 1920 by which any liability may be fixed on Ram Kishore whether the liability be personal or against his property.

3. The language of Section 145 has been relied upon by the learned Counsel for the respondent. But, in our opinion,, it does not help him. Section 145 is divided into three clauses and the liability is. imposed on a person who has become liable as a surety. In the case before us Ram Kishore did not undertake to perform any decree or any part thereof. All that he said was that he would; compensate the decree-holder in case the suit of Gauri Shankar was dismissed. The amount of his liability has to be computed. Further Gauri Shankar did not even appear in the execution of Decree No. 424 of 1920. So far as the record of that suit goes, including execution proceedings, he is a perfect stranger. Clause (b) does not apply for obvious reasons. Clause (c) again does not apply, because Ram Kishore lias not made himself liable for payment of money under Decree No. 424 of 1920 or in any proceeding consequent on Suit No. 424 of 1920. As we have said, Ram Kishore is entirely a stranger both to Suit No. 424 of 1920 and to its execution proceedings. If the undertaking given by Ram Kishore in Suit No. 514 of. 1922 could bring him in as a surety in execution of Decree No. 424 of 1920, he might as well be treated as a surety in execution of Suit No. 424 of 1920 if he had given a private undertaking to Chiranji Lal by execution of a bond in his favour. It can never be argued that in such a case Ram Kishore would have been liable. In Sabbaraya Pilial v. Sathanatha Pandaram [1918] 48 I.C. 940, a bond outside the Court had been given by a surety to the decree-holder, and it was held (reversing the decree of a learned Judge of the Madras High Court) that the liability did not attach and the decree could not be executed against the surety. We agree with this decision. For the reasons given above, we allow the appeal, set aside the execution order of the Court below and dismiss the application for execution as against the appellant Ram Kishore with costs throughout.


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