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Paily Vs. Kunjumuhammed - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 6 of 1956-K
Judge
Reported inAIR1960Ker11
ActsCode of Civil Procedure (CPC) , 1908 - Sections 145
AppellantPaily
RespondentKunjumuhammed
Appellant Advocate A.S. Krishna Iyer, Adv.
Respondent Advocate T.S. Venkiteswara Iyer, Adv.
DispositionAppeal allowed
Cases ReferredHiralal v. Manilal
Excerpt:
- - krishna iyer learned counsel for the appellant raised before me the same contention as was pressed unsuccessfully before the courts be-low, viz......that the order for stay had been operative from the date of the inception of the bond until the stay stood cancelled and it could not therefore be said that there was no consideration for the bond or that the stay was not granted. further that on the terms of the bond there was no condition attached that the stay should be operative till the appeal was disposed of. in my judgment, however, both these grounds are untenable and the contention raised by the surety should have been upheld. 4. now it is a general rule that upon the reversal of an order, all connected or dependent orders or acts in the law fall with it. whether an order or act in the law is a dependent one, that is, merely ancillary or accessory to another order so as to share its fate and fall to the ground along with it,.....
Judgment:

N. Varadaraja Iyengar, J.

1. This second appeal is by the surety for the 3rd defendant and is directed against an appellate order of the lower court confirming an order of the executing court which repelled his contentions that the surety bond executed by him had become unenforceable.

2. The decree of the trial court had provided for recovery of property with rent past and future against the 3rd defendant and others. Pending his appeal before the District Court, the 3rd defendant applied for and obtained stay of execution on condition that he furnished security for a sum of Rs. 400. The appellant accordingly stood surety and executed bond on 29-2-1125. The bond was accepted on the same day by the executing court and further execution was stayed. Subsequently on 23-3-1125 the plaintiff-respondent filed review petition before the District Court praying for modification of the stay order on ground that the decree amount had really come up to Rs. 600 and there was also future rent recoverable.

After hearing the parties the court passed fresh order on 3-4-1125 directing the 3rd defendant to give security for Rs. 200/- more within two weeks failing which the stay granted will stand cancelled. The 3rd defendant did not furnish the additional security and it happened also that the decree-holder did not take out execution. The appeal by the 3rd defendant was allowed by the District Court but the plaintiff won in the second appeal before the High Court. The plaintiff thereafter sought execution against the appellant on foot of the security bond to the extent of Rs. 400/-. The appellant objected but as observed above his contention was overruled by the courts below and hence this second appeal.

3. Mr. A. S. Krishna Iyer learned counsel for the appellant raised before me the same contention as was pressed unsuccessfully before the courts be-low, viz., that by the operation of the order dated 3-4-1125 the security bond executed by the appellant had ceased to be enforceable. In rejecting this contention the executing court observed that the non-furnishing of the additional security and the cancellation of the stay order did not alter the liability of the surety to any extent but why that was so was not explained.

The learned District Judge in appeal relied upon two grounds, viz., that the order for stay had been operative from the date of the inception of the bond until the stay stood cancelled and it could not therefore be said that there was no consideration for the bond or that the stay was not granted. Further that on the terms of the bond there was no condition attached that the stay should be operative till the appeal was disposed of. In my judgment, however, both these grounds are untenable and the contention raised by the surety should have been upheld.

4. Now it is a general rule that upon the reversal of an order, all connected or dependent orders or acts in the law fall with it. Whether an order or act in the law is a dependent one, that is, merely ancillary or accessory to another order so as to share its fate and fall to the ground along with it, must be determined from the nature and scope of the proceedings and may as some of the cases in the books show, give rise to questions of considerable nicety and consequent divergence of judicial opinion. See Asutosh v. Unendra Prasad, AIR 1917 Cal 188 (2).

But once such dependence is clear, the reversal of the parent order without qualification means and implies that the orders or acts in the law dependent thereor, stand completely wiped out. It is not as if they had functioned till date of the reversal. On the other hand, it is as though they had never been. In this case the surety bond exe-cuted by the appellant was manifestly an act in the law within the meaning of the above rule so that when the plaintiff-decree-holder induced the District Court by exercise of its review jurisdiction, to revoke the stay order on the ground that the security originally ordered was inadequate the consequence necessarily followed that the surety bond stood discharged altogether.

The mistake into which the court below fell was to assume that the bond could be deemed to subsist because there was consideration, consisting of the stay of execution for the period till the date of review order to support it and again that the bond was not conditioned on a stay for longer period till disposal of appeal. But the stay as actually there was, was a matter of accident and even so, was inconsequential so far as the appellant was concerned. For in entering into the transaction the appellant had bargained for stay of execution for all the period of pendency of the appeal and not for any lesser period. The contract was one and1 entire and fell through without capability of revival as soon as the stay order was cancelled pending the appeal, for whatever reason.

The matter might have been different if the appellant had stood surety in pursuance to an order for interim stay pending disposal of a stay petition. Such a case was Hiralal v. Manilal, AIR 1926 Bom 565, where the defendant obtained stay of execution of the decree in July 1923 pending an appeal to the High Court on his furnishing a surety for interest to the extent of Rs. 1100 and up to June 1924. The order was subsequently changed as to the amount making it Rs. 5000 at the time when the rule came on for argument. No such security was furnished and the appeal was dismissed on the merits. On the question of the liability of the appellant who had stood surety under the stay order referred to, it was held that the order changing the amount put an end to the surety's obligation and that the surety was liable to pay interest up to the date of changing the amount.

5. The result is that the order of the courtbelow is reversed and this appeal allowed. Theexecution petition filed by the respondent will standdismissed as against the appellant. The appellantwill get his costs in all the courts from the respondent.


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