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Kambham Ramamurthy Vs. Sagiraju Tirupatiraju - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1948)2MLJ287
AppellantKambham Ramamurthy
RespondentSagiraju Tirupatiraju
Cases ReferredRaj Raghubar Singh v. Jai Indra Bahadur Singh
Excerpt:
.....understood to refer to security bonds like the present which are executed under order 32, rule 6, civil procedure code or executed in circumstances which will not fall within the scope of section 145 of the civil procedure code. it was not contended before us, and rightly, that section 145 applies to the enforcement of a bond like that in the present case. ). 6. there is no authority that it is, nor docs it appear to us to be necessary, that the person seeking to enforce a security bond like the present should file a suit to determine the extent of the liability under the bond. if the amount so payable is determined after a contest and without any suspicion of fraud or collusion in a suit properly laid and conducted by the erstwhile minor on attaining majority against his guardian, we..........the district munsiff of peddapuram on an application filed by the respondent to enforce a security bond executed by the appellant. the respondent, when he was a minor represented by his maternal grandfather, obtained a decree in o.s. no. 351 of 1927 on the file of the court of district munsiff of peddapuram for a sum of rs. 1,020. the maternal grandfather as next friend was allowed to draw out the money under order 32, rule 6, civil procedure code, on the execution of a security bond by the appellant. by that bond, the appellant undertook to pay any amount that may be found to be payable to the plaintiff if within 3 years of his attaining majority he raised any dispute and churned to recover any money from his guardian in respect of the decree amount. unfortunately, this bond which was.....
Judgment:

Rajamannar, Officiating C.J.

1. This is an appeal under clause 15 of the Letters Patent from the judgment of Happell, J., allowing an appeal filed against the order of the learned Subordinate Judge of Coconada who reversed the order of the District Munsiff of Peddapuram on an application filed by the respondent to enforce a security bond executed by the appellant. The respondent, when he was a minor represented by his maternal grandfather, obtained a decree in O.S. No. 351 of 1927 on the file of the Court of District Munsiff of Peddapuram for a sum of Rs. 1,020. The maternal grandfather as next friend was allowed to draw out the money under Order 32, Rule 6, Civil Procedure Code, on the execution of a security bond by the appellant. By that bond, the appellant undertook to pay any amount that may be found to be payable to the plaintiff if within 3 years of his attaining majority he raised any dispute and churned to recover any money from his guardian in respect of the decree amount. Unfortunately, this bond which was accepted by the District Munsiff, Peddapuram, was not executed in favour of the District Munsiff as it ought to have been. Actually the bond does not purport to be in favour of any person. The difficulty in this case has arisen purely on account of this circumstance.

2. The respondent became a major on the 10th January, 1941, and on the 8th August, 1941, he instituted a suit, O.S. No. 175 of 1941 against his erstwhile guardian, his maternal grandfather, for rendition of account and for recovery of the amount which may be found payable to him on the taking of the account. The guardian died pending the suit and the grandmother was brought on record as his legal representative. On the 23rd December, 1941, an ex parte decree was passed in favour of the respondent against the assets of the deceased grandfather in the hands of the grandmother. Thereafter, on the 23rd March, 1942, the appellant filed an execution application in O.S. No. 351 of 1927 to recover the amount mentioned in the security bond. This petition, however, was dismissed on the 14th June, 1943, owing to a technical defect in the decree. Subsequently, there was an amendment of the decree and again, on the 9th December, 1943, the appellant filed another application for execution in O.S. No. 351 of 1927, E.P. No. 40 of 1944 out of which the present appeal arises.

3. The learned District Munsiff of Peddapuram, overruling the objections raised by the appellant, held that the respondent could proceed to recover the amount claimed by sale of the properties secured under the security bond. He held that that as the surety bond was not in favour of any officer of the Court but in favour of the Court itself, it could not be assigned, but the procedure indicated in the ruling of the Judicial Committee in Raj Raghubar Singh v. Jai Indra Bahadur Singh (1919) 38 M.L.J. 302 : 1919 L.R. 46 IndAp 228 : 1919 I.L.R. 42 All. 158 (P.C.) must be adopted and the bond must be enforced under the inherent powers of the Court. He held that the application in question could not be deemed to be an application to execute the decree in O.S. No. 351 of 1927 and therefore could not be said to be barred by the 12 years rule under Section 48, Civil Procedure Code. On appeal the learned Subordinate Judge reversed the decision of the District Munsiff and dismissed the respondent's application on the ground that it was barred under section, 48 Civil Procedure Code. There was an appeal to this Court which was heard by Happell, J., who set aside the decision of the Subordinate Judge and restored the order passed by the District Munsiff and directed the application to be restored to file and to be heard and determined on the merits. Two questions were raised before him : namely, (1) whether the procedure adopted by the appellant to enforce the security bond was in accordance with law and (2) whether in any case, the petition was not barred under Section 48 of the Civil Procedure Code by reason of the fact that it had been filed more than 12 years after the date of the decree in O.S. No. 351 of 1927. On both these questions, the learned Judge gave his decision in favour of the respondent.

4. The second point can be disposed of easily. In our opinion, it is clear that Section 48, Civil Procedure Code has no application whatever to the present case. In no sense can the application of the respondent be said to be an application for the execution of the decree in O.S. No. 351 of 1927. That decree had been satisfied long ago. What the respondent is now seeking to enforce is not the liability of the judgment-debtor in that suit. Whether the application can be said to be barred by reason of any other provision in the Indian Limitation Act will be dealt with later on after deciding the other question, namely, the procedure to be adopted in cases where a security bond like the present has not been executed in favour of the presiding officer of the Court. If the security bond had been so executed in favour of an officer of Court, then the obvious procedure for the respondent was to obtain an assignment of the bond and to file a suit on it. This procedure, of course, should be understood to refer to security bonds like the present which are executed under Order 32, Rule 6, Civil Procedure Code or executed in circumstances which will not fall within the scope of Section 145 of the Civil Procedure Code. It was not contended before us, and rightly, that Section 145 applies to the enforcement of a bond like that in the present case.

5. The position then is this : The procedure laid down in Section 145 of the Civil Procedure Code cannot apply, and a suit cannot be filed on the security bond after it had been assigned. Mr. Somasundaram, the learned advocate for the appellant, contended that the proper procedure would be to file a suit to have the liability determined and the bond enforced. There is no direct decision to support this contention. We do not consider that the observations in Kurugodappa v. Soogamma I.L.R. (1917) Mad. 40 should be understood to lay down the procedure to be followed in all cases of bonds under Order 32, Rule 6, Civil Procedure Code. We find from an examination of the papers in that case that the bond in that case was executed in favour of the Subordinate Judge of Bellary. Having regard to that fact, the observations of Spencer, J., at page 43, that the remedy was a regular suit are not inconsistent with what was laid down in Raj Raghubar Singh v. Jai Indra Bahadur Singh (1919) 38 M.L.J. 302 : 1919 L.R. 46 IndAp 228 : I.L.R. 42 All. 158 (P.C.).

6. There is no authority that it is, nor docs it appear to us to be necessary, that the person seeking to enforce a security bond like the present should file a suit to determine the extent of the liability under the bond. According to the terms of the bond, the appellant undertook to pay any amount which may have to be paid to the respondent in pursuance of a dispute which he may raise within three years of his attaining majority with regard to the sum of Rs. 1,020 withdrawn by his guardian. If the amount so payable is determined after a contest and without any suspicion of fraud or collusion in a suit properly laid and conducted by the erstwhile minor on attaining majority against his guardian, we fail to see why he cannot seek the help of the Court in which the security bond was filed to enforce the liability undertaken by the surety. In this case, however, the facts are different in important particulars. The suit filed by the respondent against his guardian was not contested; the decree was ex parte and passed against the legal representative of the guardian and confined to such of his assets as could be traced to the possession of his legal representative, the grandmother. The appellant charges that the proceedings were collusive. On these facts, it cannot be said that a liability has been established which the appellant cannot challenge in an application to enforce the security bond executed by him.

7. It now remains to consider whether the application filed by the respondent was maintainable as an execution application. In our opinion, it was not. It was. really an application invoking the inherent powers of the Court to enforce the security bond filed before it. On that ground, however, we do not think it just to dismiss the application. It shall be treated as an independent application in O.S. No. 351 of 1927 and dealt with accordingly.

8. The article of the Limitation Act which appears to us to be most proper to apply to the present case is Article 181. This is the view taken by two learned Judges, each sitting alone in Jamundas Ravuji Sait v. Krishnan : AIR1933Mad722 and Annamalai Chettiar v. Sundaresa Iyer : (1943)2MLJ444 . Questions may arise as to when exactly time commences to run in applying this Article, but such questions do not arise in this case as the application was filed well within three years of the date on which the respondent attained majority, and it cannot in any event be contended that time began to run against the respondent before he attained majority. The language of the bond negatives any such contingency. We therefore find that treated as an independent application for the enforcement of the surety bond by the Court in which it was filed, the application was in time.

9. As we have already mentioned, it cannot be said in this case that the liability of the guardian to pay any sum of money out of the money withdrawn by him.. has been established in such a way as to be binding on the appellant. It will be for the Court disposing of the application on the merits to go into that question. We understand the directions of Happell, J., to indicate this.

10. We wish to point out that it is a matter of regret that in spite of the clear pronouncement of the Judicial Committee in Raj Raghubar Singh v. Jai Indra Bahadur Singh (1919) 38 M.L.J. 302 : 1919 L.R. 46 IndAp 228 : I.L.R. 42 All. 158 (P.C) so early as 1919 and in spite of the forms contained in the Civil Rules of Practice relating to bonds to be executed by the guardians under the Guardians and Wards Act, security bonds should continue to be taken not in favour of the presiding officer or any other officer of Court but in a form in which the bonds cannot be said to be executed in favour of anybody unless by implication they must be deemed to have been executed in favour of the Court, which, as has been pointed out by the Privy Council, is not a juridical person capable of assigning such bonds. It is unfortunate that sufficient attention is not paid to this aspect, and the omission to adopt and use the correct form often results in inconvenience and hardship to parties, both seeking to enforce the bonds as well as those who will be liable under them. In future no security bond should be accepted by any Court unless it is executed in favour of a person, be he the presiding officer of the Court or the Chief Ministerial officer of the Court.

11. As we have held that the application of the respondent is maintainable and is within time, the order of the learned Judge remanding the application for disposal: on the merits was right. The appeal, is, therefore, dismissed with costs.


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