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Mowlavi Haji Haji Mahomed Abdul Baqi Vs. Kanuru Sundararamayya and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad209; (1935)68MLJ136
AppellantMowlavi Haji Haji Mahomed Abdul Baqi
RespondentKanuru Sundararamayya and anr.
Cases ReferredJoyma Bewa v. Easin Sarkar I.L.R.
Excerpt:
- - the letter recited that the decree-holder had agreed not to execute his decree against the brother on the representation that it would be fully satisfied before the end of april 1931, and it concluded with these words: 'if we fail to so pay the amount to you, not only will my younger brother be liable therefor, but you can take proceedings against our properties and against us and we shall not raise any objection thereto'.2. it is clear from the terms of ex......is certainly a decision in his favour. in that case it was held that section 145 was limited to surety bonds taken through the court and was inapplicable to suretyships undertaken for the performance of decrees entered into outside the court. mr. justice napier, who delivered the leading judgment, thought inasmuch as clauses (a), (b) and (c) of section 145 could be referred to specific provisions of the code, e.g., order 41, rule 5, clause (3)(c), order 41, rule 6, and order 38, rule 2, clause (2), the section should be confined to cases where the surety had entered into his liability 'in the face of the court'. but the learned judge stated that he found it impossible to express a confident opinion on the matter. we also find from a reference to the record in that case that permission.....
Judgment:

Cornish, J.

1. The appellant by a letter (Ex. A), dated 7th October, 1930 undertook to be surety for the payment of a decree-debt due by his brother. The letter recited that the decree-holder had agreed not to execute his decree against the brother on the representation that it would be fully satisfied before the end of April 1931, and it concluded with these words: 'If we fail to so pay the amount to you, not only will my younger brother be liable therefor, but you can take proceedings against our properties and against us and we shall not raise any objection thereto'.

2. It is clear from the terms of Ex. A that the appellant had made himself personally liable to the decree-holder as surety for the payment of the decree against his brother. The learned Subordinate Judge has ordered execution to issue against the appellant as surety, and it is from this order that he has appealed. The question turns upon the construction of Section 145 of the Civil Procedure Code, of which the material portion runs as follows:

Where any person has become liable as surety - (a) for the performance of any decree or any part thereof...the decree may be executed against him, to the extent to which he has rendered himself personally liable in the manner herein provided for the execution of the decrees.... Provided that such notice as the Court in each case thinks sufficient has been given to the surety.

3. This apparently means that where a person has made himself personally liable as surety for the performance of a decree it can be executed against him as though he were a party to the suit and the judgment-debtor.

4. The appellant relies on Subbaraya Pillai v. Sathanatha Pandaram (1918) M.N.W. 764, which is certainly a decision in his favour. In that case it was held that Section 145 was limited to surety bonds taken through the Court and was inapplicable to suretyships undertaken for the performance of decrees entered into outside the Court. Mr. Justice Napier, who delivered the leading judgment, thought inasmuch as Clauses (a), (b) and (c) of Section 145 could be referred to specific provisions of the Code, e.g., Order 41, Rule 5, Clause (3)(c), Order 41, Rule 6, and Order 38, Rule 2, Clause (2), the section should be confined to cases where the surety had entered into his liability 'in the face of the court'. But the learned Judge stated that he found it impossible to express a confident opinion on the matter. We also find from a reference to the record in that case that permission to report it in the Indian Law Reports was refused for the reason that the learned Judges were doubtful of the correctness of the decision.

5. In these circumstances we should in any event feel justified in regarding the case as of doubtful authority. But we think that its ratio decidendi has been negatived by the subsequent ruling of the Judicial Committee in Raj Raghubar Singh v. Thakur Jai Indra Bahadur Singh (1919) L.R. 46 IndAp 228 : 42 All. 158 : 38 M.L.J. 302 , that the Court has an inherent power, apart from Section 145, to enforce a security which has been given in pursuance of the order of the court. In the particular case Section 145 had no application, because the security was in the form of a charge upon property and was not a bond imposing a personal liability. Similarly, in Sankunni Variar v. Vasudevan Nambudripad : AIR1926Mad1005 where sureties had executed a bond to the Court undertaking to produce the property of a judgment-debtor which had been released from attachment upon that undertaking, it was held that Section 145 would be inapplicable but that the bond could be enforced by execution.

6. In our opinion this recognised power of the court to enforce execution against a security independently of Section 145 deprives of any further force the reason in Subbaraya Pillai v. Sathanatha Pandaram (1918) M.W.N. 764 for restricting Section 145 to suretyships undertaken through the Court.

7. Further more, there is the direct decision in Joyma Bewa v. Easin Sarkar I.L.R.(1926) 53 Cal. 515, that it is not essential for the purpose of executing a decree against a surety under the provision of Section 145(a) that the contract of suretyship should be in form of a bond or that it should be in favour of the Court.

8. We think that the language of Section 145(a) is wide enough to apply to any contract of suretyship whereby a personal liability has been undertaken for the performance of a decree. The order of the Subordinate Judge directing execution to issue against the appellant was correct, and the appeal must be dismissed with costs.


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