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Dharmapuram Mutt Represented by Sri La Sri Shunmuga Desika Gnana Sambanda Pandara Sannadhi Avergal Vs. Muhamad Usman Sahib and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1941Mad151; (1940)2MLJ831
AppellantDharmapuram Mutt Represented by Sri La Sri Shunmuga Desika Gnana Sambanda Pandara Sannadhi Avergal
RespondentMuhamad Usman Sahib and ors.
Cases ReferredParamasivam Pillai v. Ramaswami Chettiar
Excerpt:
- - it seems to me obvious that the extended meaning of the word 'number' in tamil to cover a suit must have originated from the well-known fact that suits are given a 'number' when they are filed in court. this case seems to me to be almost precisely similar to the one which was recently decided in this court and reported in paramasivam pillai v. ramaswami chettiar air1939mad152 .the terms of a bond must be strictly construed and if the parties have failed to make a provision for the contingency of a second appeal, that is a misfortune which the court cannot correct......of this document, it was1 contemplated by the parties that if in the decision of the particular appeal numbered as a.s. no. 60 of 1928 the decision of the lower court should be altered in favour of the appellant, the liability of the surety should ensue. the parties have made no provision, as pointed out by the courts below, for the possible contingency that the appeal in the district court would be followed by a second appeal in the high court. this case seems to me to be almost precisely similar to the one which was recently decided in this court and reported in paramasivam pillai v. ramaswami chettiar : air1939mad152 . the terms of a bond must be strictly construed and if the parties have failed to make a provision for the contingency of a second appeal, that is a misfortune which.....
Judgment:

King, J.

1. One Dawood Sahib obtained a decree in O.S. No. 4 of 1927 in the Additional Sub-Court, Tanjore. In execution of the decree, a deposit of Rs. 2,745 was made. Of this sum, deducting what was attached by the creditors of Dawood Sahib, a sum of Rs. 1,569-13-3 was available to be paid to him, and he was permitted to Withdraw that amount on furnishing security. Security was offered by one Kadir Bivi Ammal who executed a deed of security on 17th October, 1928. This bond was executed in the District Court and is headed A.S. No. 60 of 1928. That appeal resulted in part in favour of the appellant and the amount payable by the judgment-debtors to Dawood was reduced by Rs. 550. This decision was given in April, 1929. There was then a second appeal to the High Court and also a Memorandum of Cross-objections. On 20th March, 1934, the High Court gave judgment dismissing Dawood Sahib's suit in toto. In October, 1935, the successful appellant in the High Court applied to execute the surety bond and to recover from the surety the full sum of Rs. 1,569-13-3 which had been paid out to Dawood Sahib in 1928. Both the Courts have dismissed this execution application on a construction of the terms of the bond, and the lower appellate Court has also held that in so far as the bond might have been otherwise enforced, in regard to the decree of the first Court in A.S. No. 60 of 1928, it is barred by limitation.

2. I think there can be no doubt that on a construction of the bond, the Courts-below are right. The important clause is this:

If in this 'number' the decision of the lower Court is altered in favour of the appellant and to the detriment of the respondent and if the respondent has to pay the whole or a portion thereof, for that amount I...shall be liable.

3. It is argued in this appeal that the word 'number', which is an English word transliterated into Tamil can be used to mean the whole course of litigation and its use can therefore in this instance be taken as representing the intentions of the parties that if at any time before this litigation came to an end, there was a decree in favour of the appellant, the surety's liability should become due.

4. I am unable to agree with this argument. It seems to me obvious that the extended meaning of the word 'number' in Tamil to cover a suit must have originated from the well-known fact that suits are given a 'number' when they are filed in Court. It is clear that when any person refers to a 'number' he will be referring to an individual suitor individual appeal or some individual proceeding which has a separate number of its own. The Tamil Lexicon, under the word 'number' gives two meanings one, the English 'number' and the second, a suit in a Court of law. It affords no support whatever to the contention of the appellant that 'number' is equivalent to such an abstract term as litigation. It is clear therefore that in the execution of this document, it was1 contemplated by the parties that if in the decision of the particular appeal numbered as A.S. No. 60 of 1928 the decision of the lower Court should be altered in favour of the appellant, the liability of the surety should ensue. The parties have made no provision, as pointed out by the Courts below, for the possible contingency that the appeal in the District Court would be followed by a second appeal in the High Court. This case seems to me to be almost precisely similar to the one which was recently decided in this Court and reported in Paramasivam Pillai v. Ramaswami Chettiar : AIR1939Mad152 . The terms of a bond must be strictly construed and if the parties have failed to make a provision for the contingency of a second appeal, that is a misfortune which the Court cannot correct. The liability of the surety in this case can therefore possibly extend only to the amount for which the decree of the first Court was reduced in appeal by the District Court in A.S. No. 60 of 1928. That amount, as already stated, is Rs. 550.

5. Next arises the question of limitation. The learned1 District Judge holds that the right to apply in execution of this bond accrued to the appellant on 12th April, 1929 and that the application filed more than six years later was barred. It is clear that the article applicable to this application is Article 182. The third column of that article gives the time from which the period begins to run. The date of the decree or order will be the time in ordinary cases, but where there has been an appeal, it is not that date but the date of the final decree or order of the appellate Court. There has been in this case an appeal by both parties and therefore the decision of the lower appellate Court in A.S. No. 60 of 1928 was in peril while the appeal in the High Court was pending. A memorandum of cross-objections had been filed, which, if successful, would have meant that the decree of the first Court would have been restored. The limitation in this case therefore began to run from 20th March, 1934 and this application was in time.

6. In the result, the order of the lower appellate Court is set aside, and the execution application restored to file. The learned Subordinate Judge will enforce the bond to the extent of Rs. 550 with interest at six per cent, per annum from the date of the bond. Proportionate costs will be given and taken by the parties throughout.

7. Leave to appeal refused.


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