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imbichunni Nayar Vs. Lalji Ram Doss Sait and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1901)ILR24Mad560
Appellantimbichunni Nayar
RespondentLalji Ram Doss Sait and anr.
Cases Referred and Dwarkadas Parshotamdas v. Isabhai Daudkhan I.L.R.
Excerpt:
civil procedure code - act xiv of 1882, section 336--surety undertaking that judgment-debtor should apply to be declared an insolvent--application in insolvency by judgment-debtor--subsequent failure to appear--release of surety. - - 2. the facts are not clearly stated, but apart from what is stated in the surety's petition, which is not verified, it appears that the insolvency petition was filed in due time, and that it was on a subsequent occasion that the judgment-debtor failed to appear when called upon.1. this is a petition which ought to have been presented under the provisions of the provincial small cause courts act and not under section 622 of the code of civil procedure.2. the facts are not clearly stated, but apart from what is stated in the surety's petition, which is not verified, it appears that the insolvency petition was filed in due time, and that it was on a subsequent occasion that the judgment-debtor failed to appear when called upon. on these facts, following koylash chandra shaha v. christophoridi i.l.r. 15 calc. 171 and dwarkadas parshotamdas v. isabhai daudkhan i.l.r. 19 bom. 210 we must hold that the surety could not be held liable. we must set aside the order of the lower court, costs of this petition must be paid by the first respondent.
Judgment:

1. This is a petition which ought to have been presented under the provisions of the Provincial Small Cause Courts Act and not under Section 622 of the Code of Civil Procedure.

2. The facts are not clearly stated, but apart from what is stated in the surety's petition, which is not verified, it appears that the insolvency petition was filed in due time, and that it was on a subsequent occasion that the judgment-debtor failed to appear when called upon. On these facts, following Koylash Chandra Shaha v. Christophoridi I.L.R. 15 Calc. 171 and Dwarkadas Parshotamdas v. Isabhai Daudkhan I.L.R. 19 Bom. 210 we must hold that the surety could not be held liable. We must set aside the order of the lower Court, Costs of this petition must be paid by the first respondent.


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