1. This is an appeal against the order of the District Judge of South Malabar confirming an order of the District Munsif, Calicut, dismissing E.P. No. 3100 of 1926 to issue a warrant of arrest against one Baputti (the respondent) who stood as second surety for the production of certain articles attached in execution of a decree obtained in O.S. No. 417 of 1921.
2. The facts are fully stated in the judgment of the District Munsif. Those which are relevant to the appeal are that the decree-holder (appellant) put in E.P. No. 614 of 1922 on April 3, 1922, for attachment of (movables. They were left in the possession of this Baputti and another who executed a bond for their production. The material' terms of the bond run:
Agreeing that if any default is made in respect of the said properties, ourselves the properties belonging to us, and our hairs in succession, would be liable for all the loss that may be sustained thereby and for any amount that may be directed by the court.
3. In a bond of this sort there is no reason for the sureties making themselves responsible for the decree amount, with which they are not concerned, and they are not liable for it unless they make themselves so in the clearest terms. It cannot be contended, and In fact has not been contended before me, that the words 'For any amount whatever that may be directed by the court' can make them liable for the decree amount. It is conceded that the words refer to any amount for which the court may hold them liable under the terms of the bond.
4. On July 6, 1922, notice was sent to the Sureties to produce the articles and they filed an application on August 31, 1922, that the properties should be sold at the place where they were kept as they consisted of logs of timber. This request was granted. They did not produce the articles. On September 11, 1922, the debtor and the first surety applied to the court in M. P. No. 1090 of 1922 urging that as the decree-holder had failed to apply for the sale of the property within two months of the date of the precept the attachment was not in force, and they prayed that the surety bond might be cancelled. It was held that they were barred by estoppel and res judicata from raising the contention and this decision was confirmed in appeal.
5. On November 20, 1922, E.P. No. 618 of 1922 was put in to arrest the first surety. There was a farther application dated. March 2,1923, to the same effect, The first surety was arrested and kept in jail for 6 months, the proceedings terminating in' September, 1923, when the petition was5 closed. On January 18,1926, M. P. No. 126 of 1926 was put in for transfer and to have the assignment recognised in favour of the assignee decree-holder and a similar petition M. P. No. 564 of June 28, 1926, to: have the assignment recognized. On August 18, 1926, the present E. P. was put in by the assignee decree-holder to execute the decree by the arrest of the second surety, the respondent.
6. The District Munsif found it barred by limitation. He thought apparently that it came under Art. 182, Limitation Act. On appeal the learned District Judge held that fn the form it was presented it was not maintainable and that in any case it was' time barred as against the second surety (respondent).
7. I agree in every point with the view taken by the learned District Judge. In Raja Raghubar Singh v. Jai Indra Bahadur Singh 55 Ind. Cas. 550 : 42 A 158; 22 OC 212 : 6 OLJ 682 : 38 MLJ 302 : 18 ALJ 263 : 22 Bom. LR 521, 46 IA 223 : 13 LW 82 the Privy Council held no doubt that a suit is not necessary to enforce a bond like the present and laid down the procedure, but their Lordshipsisay (p. 167):
It remains, therefore that there is an 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 the application, to which the sureties are parties that the properties charged be sold unless before a day named the sureties find the money.
8. In that case what was to be produced was money, here it is articles but the bond was of the same sort.
9. This has been interpreted by a Bench of this Court in Sankunni Variar v. Vasudevan Nambudripad 97 Ind. Cas. 787 : 51 MLJ 239 : 24 LW 300 : (1926) MWN 681 : AIR 1926 Mad. 105 as follows:
This is certainly an authority for the proposition that although the case does not come within the terms of Section 145, the court has inherent power to enforce the bond without recourse to a suit.
10. I am bound by this opinion and cannot, therefore, follow Madho Prasad v. Pearey Lai, 62 Ind. Gas. 719 62 Ind. Cas. 719 : 27 CWN 502 : 37 CLJ 333 : AIR 1923 Cal. 559, which case was no doubt after the Privy Council decision, but in it the Privy Council decision is not alluded to at all, and it was apparently not brought to1 the notice of the court. It is clear, therefore, that steps to enforce a bond of this sort do not fall under Section 145. Steps therefore, taken in execution against the judgment-debtor are not steps against the sureties nor are steps in execution against the sureties steps in execution of the decree itself. There is no authority at all to the contrary and the injustice and anomalies of any doctrine which would render stepson execution against the judgment-debtor steps against, sureties, who have only agreed to produce certain articles attached in execution, are obvious. In the first place it would mean that even if the sureties have produced the articles, so that their obligation under the bond has been fully discharged, yet execution is still somehow proceeding against them if subsequent execution is taken against the judgment-debtor for the balance not covered by the articles sold. It would also follow that where the sureties had not produced articles, of perhaps quite a trifling value, and no steps had been taken against them to enforce their bond, the decree-holder could come some 12 years afterwards, he had kept execution of the decree alive by proceedings against the judgment-debtor, and say that limitation was saved.
11. In furnishing such security the sureties cannot have any legal knowledge imputed to them except that there has been a decree against somebody, that property has been attached in execution of it,' and that they have made themselves responsible for its production to court when called for. They need not even know who the judgment-debtor is, nor do they undertake the smallest responsibility for his conduct or for paying the decree amount. The injustice therefore of counting steps taken against him in execution, with which they have no concern, and of which they may have no knowledge, to save limitation against them in enforcing their bond, if they have defaulted, is obvious. It is unnecessary to consider the converse, case whether steps taken against the sureties will be steps against the judgment-debtor to save limitation. Consequently the petitions of January 18, 1926, and June 8, 1926, are not available to save limitation.
12. But it is argued that at least the petition for arrest taken out against the 1st surety on March 2, 1923, which was not disposed of till September, 1923, will make this E. P. against the 2nd surety on August 18, 1926, in time. I agree with the learned District Judge that, looking at the decisions in Raj Raghubar Singh v. Jai Indrq Bahadur Singh 55 Ind. Cas. 550 : 42 A 158; 22 OC 212 : 6 OLJ 682 : 38 MLJ 302 : 18 ALJ 263 : 22 Bom. LR 521, 46 IA 223 : 13 LW 82 and Sankunni Variar v. Vasudevan Mambudripad 97 Ind. Cas. 787 : 51 MLJ 239 : 24 LW 300 : (1926) MWN 681 : AIR 1926 Mad. 105 the present application is governed by Art. 181 and not 182 of the Limitation Act. Assuming that the E. P of February 2, 1923, could save limitation as against the 1st surety, it is, I think, quite clear that it cannot do so with regard to the second surety. The mere fact that the name of the 2nd surety is mentioned in that application without any relief being sought against him is not enough; Vide Wazir Bakhsh v. Hari Ram 60 Ind. Cas. 265 : AIR 1922 Lah. 208; 3 UP LR(L) 62 : 4 Lab. LJ 85.
13. I may mention a case which came to my notice after arguments and to which t afterwards drew the attention of the learned Advocates though, for reasons to be stated, I am not prepared to follow one of the opinions expressed in it. This is a Civil Miscellaneous Second Appeal No. 211 of 1927, recently decided by Madhavan Nair, J., and reported in Rama Reddi Chinna v. Kothe Palli Gurumurthi : AIR1933Mad219 Mad. The learned Judge there held that the cause of action in a case of this sort arose on the date on which, the conditional liability to produce1 the property came into existence, i.e., the date of the security bond, and not on the date that the surety defaulted in producing it. Of course if that view is correct the appellant is still more out of time as the date of the security bond is April 7, 1922 : but I will assume for the purposes of the argument that the date is the one, he contends for when default in production was made which input at September 11, 1922 when the sureties put in the petition asking that the bond should be cancelled.
14. Madhavan Nair, J., while, in the matter of holding that a suit to enforce the bond is not necessary refers to Sankunni Variar v. Vasudevan Nambudripad 97 Ind. Cas. 787 : 51 MLJ 239 : 24 LW 300 : (1926) MWN 681 : AIR 1926 Mad. 105 states in an earlier paragraph that no authority had been quoted that the provisions of Section 145 will not apply and he says that resort is invariably had to Section 145, Civil Procedure Code, in such cases.
15. In my opinion the two cases quoted above are clear authorities that Section 145 does not apply and the Bench in Sankunni Variar v. Vasudevan Nambudripad 97 Ind. Cas. 787 : 51 MLJ 239 : 24 LW 300 : (1926) MWN 681 : AIR 1926 Mad. 105 has read the Privy Council decision in that sense. It would have been perfectly easy for their Lordships to have said that, though a suit is not necessary, Section 145 will apply. Instead of that they give quite a different procedure which is to get an order from coart, after notice to the sureties, that the bond is forfeited and then to proceed, to execute that order. As I said above lam in any case bound by the Bench view on the point. Some argument was raised about estoppel or res judicata on account of the decision in M. P. No. 1090 of 1922. There is, I consider, no estoppel arising from.that petition nor res judicata with regard to the contention that the present petition is in the wrong form and that it is time-barred. That petition C. M. P. No. 1090 of 1922 was one to declare the bond cancelled and the Loney effect of its dismissal was to settle that the bond was in force and executable then. The Execution Petition for arrest on the0 1st surety were taken out subsequently to this and even if they could be res judicata, as against the 1st surety on the point that. the execution could be taken out in this way, without an order of liability on the bond being passed by the court, they could not possibly be res judicata against: the 2nd surety against whom no action was sought under them. In my opinion the procedure now adopted is misconceived being premature. It is necessary first to obtain an order of the court declaring the bond of the 2nd surety forfeited; Even if the present petition were lo be treated as such an application it is barred be limitation being made more than three years not only from the date of the bond (if the view of Madhavan Nair, J., in the-case quoted above taken as correct) but also from the date of the alleged default.
16. The second appeal fails and is dismissed with costs.