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G. Kuppuswamy Chetty Vs. Pahkiri Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad342
AppellantG. Kuppuswamy Chetty
RespondentPahkiri Pillai and ors.
Cases ReferredRaj Raghubar Singh v. Jai Indra Bahadur Singh
Excerpt:
- - the learned district judge remarked however that he was not at all satisfied with the manner in which the lower court dismissed the execution petition on the merits......with the manner in which the lower court dismissed the execution petition on the merits. the surety bond is not incomplete in law by reason of the attachment list annexed to it having been signed by only one surety even though the surety who has not signed was the one who took charge of the moveables.2. he was of opinion that it is a matter for evidence. then he said:while i agree that the issue of a notice was necessary on the analogy of section 145, the petition ought not to have been dismissed without calling upon the decree-holder to pay batta for notice.3. he is evidently here under a misapprehension that the petition was one for notice on the sureties to produce the articles. the petitioner simply prayed for their arrest. prom the decision in rai raghubar singh v. jai indra.....
Judgment:

Walsh, J.

1. In this case the properties of a judgment-debtor were attached and the respondents' sureties executed a bond for the production of the articles. The petitioner applied for the arrest of these persons on the ground that they did not produce the articles. The lower Court dismissed the petition mainly on two grounds: firstly that the bonds were defective as the list of articles attached had not been initialed by the parties on each page, and secondly that there must be a notice to the sureties to produce the articles for any valid order of execution to be taken against them and there was no such notice in the case of the first surety. The matter was taken in appeal to the District Court, which found that the appeal did not lie and that finding is not contested before me. The learned District Judge remarked however that

he was not at all satisfied with the manner in which the lower Court dismissed the execution petition on the merits. The surety bond is not incomplete in law by reason of the attachment list annexed to it having been signed by only one surety even though the surety who has not signed was the one who took charge of the moveables.

2. He was of opinion that it is a matter for evidence. Then he said:

While I agree that the issue of a notice was necessary on the analogy of Section 145, the petition ought not to have been dismissed without calling upon the decree-holder to pay batta for notice.

3. He is evidently here under a misapprehension that the petition was one for notice on the sureties to produce the articles. The petitioner simply prayed for their arrest. Prom the decision in Rai Raghubar Singh v. Jai Indra Bahadur Singh AIR 1919 PC 55 which has been followed in Sankunni Variar v. Vamdevan Nambudripad AIR 1226 Mad 1005 it is clear that while a separate suit to enforce a bond of this nature is not necessary yet action on the bond does not fall under Section 145, Civil P.C. Their Lordships have in Raj Raghubar Singh v. Jai Indra Bahadur Singh AIR 1919 PC 55, laid down the procedure to be followed where they say:

It remains therefore that here is the unquestioned liability and there must be some mode of enforcing it and that the only mode of enforcing it must be by the Court making an order in the suit upon an application to which the sureties are parties that the properties charged be sold unless before a day named the sureties find the money.

4. In that case it was a question of finding money and in the present case it is a question of producing the articles or money for which the sureties rendered themselves liable on the bond. Hence the petition to arrest the sureties without having obtained an order of Court under the bond is premature and was rightly dismissed. In these circumstances this revision petition is dismissed with costs one set. The second appeal does not lie.


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