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Nageshar Prasad Vs. Gudri Lal NaraIn Das and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All382
AppellantNageshar Prasad
RespondentGudri Lal NaraIn Das and anr.
Excerpt:
.....failed to take advantage of this statutory remedy, it was-not open to respondent to invoke the provisions of section 151. he accordingly dismissed the respondent's application, against the appellant. r 1920 mad 75. these two rulings clearly support the respondent's contention in this connexion. it is well established that where a party considers a decree or order of the court unjust and has neglected to avail himself of the remedy provided by the code of civil procedure, e. , his right of appeal or of application in revision, it is not open to him subsequently to invite the court by virtue of its inherent jurisdiction reserved by section 151 to disturb that decree or order which he has failed to challenge in the statutory manner and within the statutory period. 5. the appellant argued..........p.c. the judgment-debtor furnished the appellant nageshar prasad as surety. the latter executed a surety bond under which he undertook (1) that the judgment-debtor would file an insolvency application in the court of the district judge, and (2) that he as-surety would produce the judgment-debtor in the court on the date to be-fixed by the court. the date fixed, was 21st may. 1929. on 7th may the-application to be declared an insolvent-was filed by the judgment-debtor. on 21st may the judgment-debtor was produced in court. on 23rd may the appellant applied to have his surety bond-cancelled in respect that he had discharged the obligations undertaken by him thereunder. parties were heard' upon this application on the same day, namely, 3rd may, the court passed, an order discharging the.....
Judgment:

Rachhpal Singh, J.

1. The respondents, the firm Gulzari Lal-Narain Das, obtained simple decree against one Raghunath Prasad on 26th April 1926. In execution thereof Raghunath Prasad was arrested on 20th April 1929. On this date Raghunath filed an application in the Court of the Munsif of Rasra, in which he stated that it was his intention to apply to be adjudged insolvent and in respect whereof he craved his release. The Court ordered his release and stayed execution proceedings on condition that he furnished security under Section 55(4), Civil P.C. The judgment-debtor furnished the appellant Nageshar Prasad as surety. The latter executed a surety bond under which he undertook (1) that the judgment-debtor would file an insolvency application in the Court of the District Judge, and (2) that he as-surety would produce the judgment-debtor in the Court on the date to be-fixed by the Court. The date fixed, was 21st May. 1929. On 7th May the-application to be declared an insolvent-was filed by the judgment-debtor. On 21st May the judgment-debtor was produced in Court. On 23rd May the appellant applied to have his surety bond-cancelled in respect that he had discharged the obligations undertaken by him thereunder. Parties were heard' upon this application on the same day, namely, 3rd May, the Court passed, an order discharging the appellant.

2. The insolvency application of the-judgment-debtor was eventually rejected, some time after the surety had been discharged. Thereupon the decree-holder applied on 10th July 1930, for art, order that the appellant be ordained, to produce the judgment-debtor and. in default thereof that execution should, be enforceable against the appellant. As the surety-bond has been cancelled'. by the order of 23rd May 1929, the-respondent filed a further application! on 28th July in which he prayed that this order be set aside by the Court, in the exercise of its inherent jurisdiction reserved to it by Section 151, Civil P.C. On 28th July 1930, it was not open to the respondent to challenge the order of May 1929, by way of appeal the statutory period for appeal having expired. The learned Munsif held that it was not open to the-Court to disturb the order of 2 3rd. May 1929, as the respondent had neglected to avail himself of his statutory-remedy. Having failed to take advantage of this statutory remedy, it was-not open to respondent to invoke the provisions of Section 151. He accordingly dismissed the respondent's application, against the appellant. The learned Additional Subordinate Judge in the lower-appellate Court has held that the order of 23rd May 1929, discharging: surety is null and void, and he has. accordingly allowed the respondent's-claim.

3. The argument that the respondent was entitled under Section 151 to have the order of 23rd May 1929 reviewed and set aside was not pressed before us in appeal. It was contended at some i length that the order inasmuch as it; was not made in an application against: the surety by the decree-holder was not a decree within the meaning of the Code of Civil Procedure. It was not appealable and the remedy of appeal was therefore not available to the respondent. With this argument we are in agreement and in this connexion we refer to two rulings, viz., Ram Kishun v. Lalta Singh : AIR1928All527 and Ramanathan Pilial v. Doraiswami Aiyangar A.I.R 1920 Mad 75. These two rulings clearly support the respondent's contention in this connexion. It was admitted however that the respondent had a remedy by way of revision. It is well established that where a party considers a decree or order of the Court unjust and has neglected to avail himself of the remedy provided by the Code of Civil Procedure, e. g., his right of appeal or of application in revision, it is not open to him subsequently to invite the Court by virtue of its inherent jurisdiction reserved by Section 151 to disturb that decree or order which he has failed to challenge in the statutory manner and within the statutory period. But as already remarked this point was given up by the respondent in the course of the hearing.

4. In support of his appeal the appellant has argued that he is no longer a surety, by the order of 23rd May 1929, his responsibility under his surety-bond has been cancelled, and that therefore the Court cannot hold him liable under it. The respondent has argued in reply that the surety-bond was executed under Section 55(4), Civil P.C. and could not be cancelled till the termination of the insolvency proceedings. We have considered the terms of the bond. Upon the face of it the bond does not appear to have been executed under any section of the Code of Civil Procedure. No reference is made to Section 55(4). It may be that the Court should not have accepted that bond as executed, but the fact is that it did accept 'the bond without any objection on the part of the respondent. In these circumstances we are opinion that the appellant is entitled to stand 'upon the terms of the bond, and it is not open to the respondent to have imported into the bond provisions which are not there.

5. The appellant argued in the second place that assuming that the order of 23rd May 1929 was a bad order, it cannot now be challenged since the respondent did not take steps to challenge it timeously. We have already dealt with his argument with which we have declared our agreement. The respondent however has contended that the order of 23rd May 1929 was ab initio null and void. The lower Court had stayed execution proceedings pending the determination of the insolvency proceedings and the latter not having been terminated upon 23rd May 1929, the Court he maintained had no jurisdiction to pass the order cancelling the bond on that date. We are unable to accept this contention. It was not disputed by the learned Counsel for the respondent that the lower Court had jurisdiction to entertain the application made upon 23rd May 1929 by the appellant for his discharge as surety. Further it is possible to envisage many circumstances in which the granting of such an order upon an application for discharge would not only be within the jurisdiction of the Court but indeed just and equitable. We cannot therefore regard the order of discharge of' 23rd May 1929 as a fundamental nullity which the respondent was and is entitled to ignore. We are of opinion that the order was a just order in the circumstances, but just or unjust, it certainly was not a nullity. Whether a decree or order of the Court is a nullity or not may sometimes be a somewhat complicated problem. There may be a border line cases where the question is attended by a considerable difficulty. This matter was considered in the case of Ashutoh Sikdar v. Behari Lal Kirtunia (1908) 35 Cal 61. In the course of their judgment their 'Lordships of the Privy Council stated that one well-established test of whether an order or decree is a nullity or a mere irregularity is: is it open to the parties against whom the decree or order is passed to waive objection to it? Applying that test in the present case it is clear that the order of 23rd May 1929 was not a nullity. It was an order which the Court had jurisdiction to pass upon consideration of the appellant's application for discharge. We hold (1) that the order of 23rd May 1929 is sound in law; (2) that in any event it cannot now be challenged by the respondent; and (3) that the appellant has been discharged as surety in connexion with the proceedings against Raghunath Prasad. In the result the appeal is allowed. The appellant will have his costs throughout.


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