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Ramprasad Dalsukhram Soni Vs. Somabhai Kacharabhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 314 of 1962
Judge
Reported inAIR1964Guj260; (1964)0GLR1074
ActsCode of Civil Procedure (CPC) , 1908 - Sections 145 - Order 38, Rule 5
AppellantRamprasad Dalsukhram Soni
RespondentSomabhai Kacharabhai and anr.
Appellant Advocate V.J. Desai, Adv.
Respondent Advocate N.Y. Pathan, Adv.
DispositionAppeal allowed
Excerpt:
- - this form clearly shews that if there is a default on the part of the judgment-debtor, the court has to adjudge, the amount to be paid by the surety and such an order can be enforced and executed:.....be enforced and executed: under the provisions of section 145, c. p. c, unfortunately, the actual bond executed by the appellant does not strictly follow the form given in form no. 6 of appendix f to the first schedule to' the c. p. code, but it contains an undertaking by the judgment-debtor to act according to the order or decree which is finally passed by the court and an undertaking by the surety to pay rs. 5000/- if the defendant in the suit fails to carry out his undertaking. such terms' are out side the scope of 'the surety bond given under 0rder 38, rule 5, c. p. code. 3. in this case, the decree also contains a reference to the appellant: in the case of a: surety under 0rder 38, rule 5, c, p. code, for attachment before judgment, a decree cannot be passed against a surety,.....
Judgment:

V.B. Raju, J.

1. The: appellant gave a Surety bond for Rs. 5,000/- in connection with an application for attachment before judgment by respondent No. 1 in a suit filed by respondent No. 1 against respondent' No. 2. A' decree by consent of the parties was ultimately passed in favour of respondent No. 1 for Rs.. 4,000/-and add. The decree was, sought to be executed against the 'appellant. The contention of the learned counsel for the appellant is that, the: decree cannot -be executed against the appellant. 'Cases of attachment before judgment area referred to in 0rder 38, Rule 5, C. P. Code. Under this Rule the Court may direct the defendant within a time to be ,fixed by it, either furnish security, in such' sum a may'' be specified in the order, to produce and place at the 'disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree,' or to appear and show cause why' he should not furnish security. The procedure for enforcement of liability of surety is., mentioned In Section 145 C. P.C., which' reads as follows

''Where any person has become liable; as-surety--(a) for the' performance of any decree or ,any part thereof 'or '

(b) for the restitution of any property taken in execution of a dcree, of

(c) for the payment of any money, or for he fulfillment of any condition imposed on any person under an order of h e Court in any suit or in any proceeding cones quent there on, the decree or order may be executed against him to the extent to which he has rendered him self personally liable in the manner herein provided for the execution of decrees and such person shall for the purpose of appeal, be deemed a party within the meaning of Section 47

Provided that-such notice as the-Court in each case thinks sufficient has been given to She surety.' '

2. When security is given under 0rder'. 38,'Rule 5, C. P. Code, the surety is not for the performance of any decree or a part thereof, but for the production before the Court of certain property liable to be -attached. Therefore, Clause (a) of Section 145, C. P. Code; has no application, it is only in eases falling under Clause (a) of Section 145, C. P. Code, that the decree itself can be executed, But under 0rder 38, Rule 5, C. P. Code, in the case of-attachment re-fore judgment, a surety is not for the performance of any decree or any part thereof. ln cases failing under 0rder 38, Rule 5, C. P. Code, a surety bond must be taken in Form No. 6 of Appendix F to the First Schedule to the C. P. Code. This form clearly shews that if there is a default on the part of the judgment-debtor, the Court has to adjudge, the amount to be paid by the surety and such an order can be enforced and executed: under the provisions of Section 145, C. P. C, Unfortunately, the actual bond executed by the appellant does not strictly follow the form given in Form No. 6 of Appendix F to the First Schedule to' the C. P. Code, but it contains an undertaking by the judgment-debtor to act according to the order or decree which is finally passed by the Court and an undertaking by the surety to pay Rs. 5000/- if the defendant in the suit fails to carry out his undertaking. Such terms' are out side the scope of 'the surety bond given under 0rder 38, Rule 5, C. P. Code.

3. In this case, the decree also contains a reference to the appellant: In the case of a: surety under 0rder 38, Rule 5, C, P. Code, for attachment before judgment, a decree cannot be passed against a surety, because the surety is not a party to the original suit. But the surety bond executed by the surety can, be executed, after complying with the provisions of.. Section 145, .C. P. Code. . But the decree-holder unfortunately 'has tried to execute the original decree against the appellant, who executed the surety bond. This is not correct. He should execute the surely bond in the manner provided-in Section 145 C.'P. Code after making the Court adjudge the amount payable by'' the surety under the surety bond executed by him. But the surety bond must be executed under' the provisions of Section 145, C. P. Code, the proper procedure has not been followed in this case' and therefore the execution proceedings to execute the original decree against the appellant-surety in respect' of the attachment before judgment under '0rder 38, Rule 5, C. P. Code, are set aside. It is open' to the decree-holder to follow the provisions of Section 145, C. 'P. Code.

4. The appeal is allowed fib order as to costs.


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