Panigrahi, C. J.
1. This is an application under Article 227 of the Constitution questioning the validity of the order of opposite party 1 directing the petitioner to pay up the dues in respect of a contract executed by one Lakshminarayan Panda in favour of the opposite party. The facts are that Lakshminarayan Panda purchased Tilika Coupe No. II, Lot No. I of the Ghumsur South Division, at a public auction, and executed an agreement on 13-9-1949, in favour of the Government of Orissa through opposite party 1. The father of the petitioner (Maha-dev Panda) stood surety for the contractor.
A sum of Rs. 3600/- having been outstanding against the contractor, the same is sought to be realised from the properties belonging to the petitioner who is the undivided son of Mahadev. Mahadev Panda died on 4-5-1950. A distress warrant was issued against the petitioner on 16-11-3954 for recovery of the amount outstanding against the contractor.
The petitioner appealed to the Divisional Forest Officer, the Conservator of Forests and to the Collector of Ganjam complaining that he was not liable for the payment of the surety debt contracted by his father, and that he was being unnecessarily harassed by the Forest Department authorities. As he did not get relief he has come up to this Court with this application praying that the requisition signed by the Taluk Officer, Surada, to realise the dues from him should be declared illegal and should be withdrawn.
2. It appears that the petitioner has paid a part of the arrears under duress and he has therefore prayed that the amount so paid should be refunded to him.
3. The original demand was subsequently revised and the present levy is fixed at Rs. 1804-14-0. The Divisional Forest Officer filed a counter-affidavit in which it is averred that Maha- dev Panda entered into a partnership with Lakhminarayan Panda and some other persons on 31-3-1950, whereby they agreed to carry on timber business and take leases of forest coupes. It is accordingly said that the petitioner's father was liable to make good the loss sustained by the Forest Department. The bond executed by Mahadev Panda on 14-9-1949 is quoted in full in the counter affidavit and reads as follows:
'I do hereby undertake that I am solely responsible for the payment of any amount of Government dues defaulted by Shri Lakhminarayan Panda in connection with Tiliki Coupe No. 2, Lot I'.
It is not clear from this bald statement whether there was any consideration in support of this agreement entered into by the petitioner's father. Clearly, the bond amounts to no more than a surety bond guaranteeing the honesty of the contractor. The manager of a coparcenary, not even the father, can contract an avyavaharika debt so as to make the coparcenary liable for its discharge. The substantial plea taken by the petitioner, therefore, is that the agreement was for the payment of dues of Shri Lakshminarayan Panda and as the surety-debt contracted by him is an avyavaharika debt he is not liable to discharge it.
The contention raised on behalf of the opposite parties is that the petitioner has an alternative remedy, by way of a suit for a declarationthat the debt is not recoverable by the Forest Department as it is repugnant to law and that therefore this Court should refrain from exercising itsjurisdiction under Article 226. We are satisfied, however, that the demand is prima facie unsustainable in law and we would not be justified in putting the petitioner to harassment and expense bydriving him to the Civil Court for establishinghis right when the position leaves no room fordoubt.
We are also not impressed by the stand taken by opposite party No. 1 that Mahadev Panda (the father of the petitioner) was under a contractual liability by reason of the subsequent partnership agreement to discharge the dues of the Forest Department executed on 31-3-1950 -- about 6 months after the execution of the surety bond,
4. It may also be mentioned that the demand appears to be prima facie barred by limitation as Mahadev died on 4-5-1950, and the arrear was sought to be realised from his son on 16-11-1954.
5. On a consideration of all these circumstances we would allow this petition and direct opposite parties 1 to 3 to withdraw the warrant Issued against the petitioner. We would further direct that the amount collected from the petitioner under threat of attachment of his properties should be refunded to him. The petitioner shall also have the costs of this application which we assess at Rs. 100/- (one hundred only.)
V.B. Rao, J.
6. I agree.