Skip to content


Sardarsingh Vs. Kishorilal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Appeal No. 115 of 1957
Judge
Reported inAIR1960MP221
ActsCode of Civil Procedure (CPC) , 1908 - Sections 145 - Order 38, Rule 2 - Order 48, Rule 3
AppellantSardarsingh
RespondentKishorilal and anr.
Appellant AdvocateS.N. Gupta, Adv.
Respondent AdvocateRiijharam Zhamakdas, Adv.
DispositionAppeal allowed
Cases ReferredIn Karora Singh v. Babu Ram
Excerpt:
.....the surety who objected on two grounds, firstly that in terms, his bond was only to guarantee the attendance of the defendant during the suit; 1. a bond, like all instruments creating a liability, must be construed strictly. and ^nkok**in the security bond should be interpreted so as to include execution, proceeding as well. be that as it may, there is no authority holding that suit in this context includes execution proceedings as well......of the security bond, the decretal amount payable by the) judgment-debtor respondent no. 2 to the decree-holder respondent no. 1.2. the facts for the most part are common ground and the question is only in regard to the interpretation of the security bond, and the application of section 145 and order 38 rule 2 c. p. c. the special interest of this case is that the decree-holder, having failed by negligence to obtain a bond in terms of the rule, or in the standard form in appendix f (2) to the c. p, c., has to face the problem of establishing that the security bond, as worded, enables him to realise the decretal amount from the surety.3. the relevant facts are the following :respondent no. 1 brought a suit against respondent no. 2 and took out a warrant of arrest before judgment where it.....
Judgment:

H.R. Krishnan, J.

1. This is a second Misc. appeal by the surety for the defendant under Order 38 Rule 2 C. P. C., from the concurrent decisions of the lower Courts, to realise from, him, on the strength of the security bond, the decretal amount payable by the) judgment-debtor respondent No. 2 to the decree-holder respondent No. 1.

2. The facts for the most part are common ground and the question is only in regard to the interpretation of the security bond, and the application of Section 145 and Order 38 Rule 2 C. P. C. The special interest of this case is that the decree-holder, having failed by negligence to obtain a bond in terms of the rule, or in the standard form in appendix F (2) to the C. P, C., has to face the problem of establishing that the security bond, as worded, enables him to realise the decretal amount from the surety.

3. The relevant facts are the following :

Respondent No. 1 brought a suit against respondent No. 2 and took out a warrant of arrest before judgment where it was going to be served, the appellant came forward and executed a bond. A party may not be bound to use the form given in the schedule, but he should bring out in the bond the operative provision of the law that is applicable. Under Order 38 Rule 2 C. P. C. and in the form No. 2 in the Appendix F to the Civil Procedure Code, the operative provision is : '..... furnish security for his appearance/ at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit.'

The relevant part of the appellant's bond is :

'I Sardarsingh stand surety for the defendant ..... and I agree that I will see that the defendant shall be present in the Court on every day of the hearing till the final disposal of the suit nkosdk vk[kjh fudky gksus rd- I shall produce him if he fails to attend. If I fail to do so, I shall satisfy from my own property the decree, if any, that might be passed in favour of the plaintiff.....'

4. Some time afterwards, the suit was dismissed for default but was subsequently restored on the petition of the plaintiff. Ultimately the trial Court passed a decree. The defendant not having satisfied it, it was put into execution against the surety who objected on two grounds, firstly that in terms, his bond was only to guarantee the attendance of the defendant during the suit; and not his appearance in any execution case, or to do any thing after the disposal of the suit and before the satisfaction of the decree. The second ground is that when the suit was dismissed in default the bond too stood automatically cancelled; and its subsequent restoration to the file did not revive the bond.

5. Point No. 1. : A bond, like all instruments creating a liability, must be construed strictly. In this case the bond does not mention Order 38 Rule 2 C. P. C. and it would therefore be unnecessary to examine whether, in spite of the loose wording all the contents of the rule would be read by implication. The case reported in David Johnston v. Dwarka Pershad. AIR 1928 Lah 696, illustrates bow strictly a bond is to be interpreted. The judgment-debtor having been arrested, the surety agreed to produce him on a particular date. It being a holiday and there being no notice on the surety to produce the judgment-debtor on any other date, the Court held that he should not be proceeded against for the absence of the judgment-debtor. In Laxmichand v. Gokal Prasad, AIR 1951 Raj 67, we have a case not dissimilar to the present one. The defendant having been arrested under Order 38 Rule 1, C. P. C., a security bond was executed in loose language not incorporating all the elements in Rule 2, It was to the effect :

'I shall produce defendant Gordhansingh on every date of hearing gj is'khij and I shall see that he docs not transfer his property. If he does not attend 011 any 'Peshi' or disposes of his property, then I shall myself pay the sum of which is the value of the subject-matter of the suit.'

A decree being passed, the decree-holder tried to execute it against the surety, who took the objection that his bond did not guarantee the appearance of the judgment-debtor until satisfaction of any decree passed against him in the suit. That was accordingly allowed and the surety was discharged. It was held:

'The question whether a surety has incurred liability under the bond always depends upon the strict terms of the bond and he cannot be held liable except to the extent to which he has bound him-self. If the enforcement does not fall within its language, it is not permissible to override that language in the light of what the parties intended, if they did not succeed in expressing that intention in suitable language.'

6. On behalf of the decree-holder, it was urged that the word 'suit' in Order 38 Rule 2 C. P. C. and ^^nkok** in the security bond should be interpreted so as to include execution, proceeding as well. I do not agree. In the Rajasthan ruling quoted above, a similar contention was ruled out:

'IF it is only during the proceedings in connection with the suit, and execution proceedings are not mentioned in the bond, the liability must be restricted to the extent to which it has been undertaken.'

Suit or ^^nkok** cannot include execution proceeding as would be clear from a perusal of Order 38 Rule 2 C, P. C. which makes separate mention of the satisfaction of the decree. The ruling reported in Shiv Dayal Ram Ditamal v. Muhammad Khan, AIR 1924 Lah 490 has been cited by the decree-holder as laying down that in this context suit does include execution proceeding. I find nothing in that ruling justifying this inference. There the decree-holder was able to proceed in respect oE the decree because? of some other condition in the plaint which was to the effect:

'I stand surety and I agree that the defendant shall attend the Court till the disposal of the suit rk QSlyk eqdnek gktk- If the defendant does anything wrong in the present court, then I (the surety) shall deposit the claim of the suit tjs eqdnek-**

The Lahore High Court seems to have understood this to be a guarantee that the defendant shall satisfy any decree that might be passed, as otherwise he would be doing something wrong. Be that as it may, there is no authority holding that suit in this context includes execution proceedings as well.

7. Point No. 2 : The second ground on which the surety-appellant relies, is not acceptable. He has quoted N. Pakkaran v. Pathumma Umma, AIR 1930 Mad 541. But there the decree was nassed by the appellate Court. As far as the trial Court was concerned, the suit was dismissed by a decree. In the later Madras case Jali Basappa v. Heerada Rudrappa, AIR 1939 Mad 167, the effect of dismissal of the suit on an attachment before judgment under Order 38 Rule 5 C. P. C., was considered. But it is not clear whether it was a dismissal in the proper sense by a decree, or a dismissal in default. So that ruling is not of any assistance. In the Nagpur case, Pannalal v. Haji Abdul Karim, AIR 1941 Nag 61, it was held that a dismissal under Order 9 Rule 8 C. P. C., was not a decree and that therefore surety's liability was not terminating and he would again become liable under the bond if the suit was restored and decreed. In Karora Singh v. Babu Ram, AIR 1952 Pepsu 22, it was held that where an order dismissing the suit for default is set aside, the suit is revived as it was on the date,, of dismissal and the surety bond, which in that case was under Order 38 Rule 5 C. P. C., was also restored and the decree-holder would be entitled to enforce it. Thus there is no force in the second ground set up by the surety-appellant. He however, succeeds on the first ground because he had not undertaken to do anything beyond guaranteeing the appearance of the defendant till disposal of the suit which of course he has done.

7a. In the result, the appeal is allowed and the order of the first appellate court is set aside.

8. Costs and pleader's fees according to rules payable to appellant by the respondents.


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