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Mohan Lal and anr. Vs. Bhanwar Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Execution First Appeal No. 8 of 1965
Judge
Reported in1969WLN247
AppellantMohan Lal and anr.
RespondentBhanwar Lal and ors.
DispositionAppeal dismissed
Cases ReferredBadruddin v. Mohammad Hafiz
Excerpt:
.....both.;an application for execution whether it is made against the judgment-debtor or against the surety is an application to the proper court for execution within the meaning of the above clause and will extend limitation against both of them. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained..........the high court on 13.7.1954. the decree-holders first proceeded against the judgment-debtors. the execution application against the sureties was filed on 2.11.62. this application was filed within 3 years of the date of the final order passed on an application made in accordance with law to the proper court for execution against the judgment-debtors. if the application for execution were made on 2.11.62 against the judgment-debtors it would have been within time under article 182(5) under the old limitation act.5. on the question as to whether an application for execution either against a surety or judgment-debtor alone will save limitation or against both of them there is some divergence of judicial opinion. one view is that such an application will save limitation only against the.....
Judgment:

Jagat Narayan, J.

1. This is an execution first appeal by the sureties.

2. On behalf of the appellants two points were urged. Both these contentions were raised before the executing court and were overruled by it. Having heard the learned Counsel for the appellants I am of the opinion that the decision of the court below is correct. When the sureties executed the surety bond then the judgment debtor owned some machinery which had been attached in the execution of the decree. It was subsequently sold for Rs. 4, 200/- by an auction sale. Section 141 of the Contract Act runs as follows:

Surety's right to benefit of creditor's securities. - A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time when the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and, if the creditor loses or, without the consent of the surety parts with such security, the surety is discharged to the extent of the value of the security.

3. The contention on behalf of the appellants is that by the sale of the machinery the whole of the bond was discharge. This contention cannot be supported on the basis of Section 141 of the Contract Act because of the words 'the surety is discharged to the extent of the value of the security', which is lost. The surety took liability for the payment of Rs. 12.000/-. The executing court has rightly held that the decree-holders are entitled to execute the decree against them to the extent of Rs. 7800/-.

4. The final decree was passed by the High Court on 13.7.1954. The decree-holders first proceeded against the judgment-debtors. The execution application against the sureties was filed on 2.11.62. This application was filed within 3 years of the date of the final order passed on an application made in accordance with law to the proper court for execution against the judgment-debtors. If the application for execution were made on 2.11.62 against the judgment-debtors it would have been within time under Article 182(5) under the old Limitation Act.

5. On the question as to whether an application for execution either against a surety or judgment-debtor alone will save limitation or against both of them there is some divergence of judicial opinion. One view is that such an application will save limitation only against the judgment-debtor or the surety, as the case may be, and not against both of them. The other view is that in such case the application for execution will save limitation against both the judgment-debtor and the surety. In my opinion the latter view is the better view. The leading case in support of this view is the decision of a Division Bench of the Allahabad High Court in Badruddin v. Mohammad Hafiz AIR 1922 All. 481. Clause 5 of Article 182 runs as follows.

Where the application next hearing after mentioned has been made the date of the final order passed on an application made in accordance with law to the proper court for execution or to take some step in aid of execution of the decree or order.

6. An application for execution whether it is made against the judgment-debtor or against the surety is an application to the proper court for execution within the meaning of the above Clause and will extend limitation against both of them.

7. I am accordingly of the opinion that the execution application was within time and dismiss the appeal.


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