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Mowlavi Haji Muhammad Abdul Baqi Vs. Kanuru Sundararamayya and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in156Ind.Cas.408
AppellantMowlavi Haji Muhammad Abdul Baqi
RespondentKanuru Sundararamayya and ors.
Cases ReferredJoyman Bewa v. Easin Sarkar
Excerpt:
civil procedure code (act v of 1908), sections 145(a), 151 - surety for performance of decree--agreement entered into outside court--mode of enforcement--applicability of section 145--inherent power of court. - t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the..........is certainly a decision in his favour. in that case it was held that section 145, was limited to surety bonds taken through the court and was inapplicable to suretyships undertaken for the performance of decrees entered into outside the court. mr. justice napier, who delivered the leading judgment, thought inasmuch as clauses (a), (b) and (c) of section 145, could be referred to specific provisions of the code, e.g., order xli, rule 5, clause 3(c), order xli, rule 6, and order xxxviii, rule 2, clause 2, the section should be confined to cases where the surety had entered into his liability 'in the face of the court.' but the learned judge stated that he found it impossible to express a confident opinion on the matter. we also find from a reference to the record in that case that.....
Judgment:

1. The appellant by a letter (Ex. A) dated October 7, 1930, undertook to be surety for the payment of a decree-debt due by his brother. The letter recited that the decree-holder had agreed not to execute his decree against the brother on the representation that it would be fully satisfied before the end of April 1931, and it concluded with these words:

If we fail to so pay the amount to you, not only will my younger brother be liable therefor, but you can take proceedings against our properties and against us and we shall not raise any objection thereto.

2. It is clear from the terms of Ex. A that the appellant had made himself personally liable to the decree-holder as surety for the payment of the decree against his brother. The learned Subordinate Judge has ordered execution to issue against the appellant as surety, and it is from this order that he has appealed. The question turns upon the construction of Section 145 of the Civil Procedure Code, of which the material portion runs as follows:

Where any person has become liable as surety (a) for the performnnce of any decree or any part thereof the decree may be executed against him, to the extent to which he has rendered himself personally liable in the manner herein provided for the execution of the decrees. Provided that such notice as the Court in each case thinks sufficient has been given to the surety.

3. This apparently means that where a person has made himself personally liable as surety for the performance of a decree it can be executed against him as though he were a party to the suit and the judgment-debtor.

4. The appellant relies on Subraya Pillai v. Sathanatha Pandaram 48 Ind. Cas. 940 : (1918) M.W.N. 764 which is certainly a decision in his favour. In that case it was held that Section 145, was limited to surety bonds taken through the Court and was inapplicable to suretyships undertaken for the performance of decrees entered into outside the Court. Mr. Justice Napier, who delivered the leading judgment, thought inasmuch as Clauses (a), (b) and (c) of Section 145, could be referred to specific provisions of the Code, e.g., Order XLI, Rule 5, Clause 3(c), Order XLI, Rule 6, and Order XXXVIII, Rule 2, Clause 2, the section should be confined to cases where the surety had entered into his liability 'in the face of the Court.' But the learned Judge stated that he found it impossible to express a confident opinion on the matter. We also find from a reference to the record in that case that permission to report it in the Indian Law Reports was refused for the reason that the learned Judges were doubtful of the correctness of the decision.

5. In these circumstances we should in any event feel justified in regarding the case as of doubtful authority. But we think that its ratio decidendi has been negatived by the subsequent ruling of the Judicial Committee in Raj Raghubir Singh v. Jai Indra Bahadur Singh 55 Ind. Cas. 550 : 46 I.A. 228 : 42 A. 158 : 22 O.C. 212 : 6 C.L.J. 682 : 38 M.L.J. 302 : 18 A.L.J. 263 : 22 Bom. L.R. 521 : 13 L.W. 82 (P.C.), that the Court has an inherent power, apart from Section 145, to enforce a security which has been given in pursuance of the order of the Court. In the particular case Section 145, had no application, because the security was in the form of a charge upon property and was not a bond imposing a personal liability. Similarly, in Sankunni Variar v. Vasudevan Nambudripad : AIR1926Mad1005 where surety had executed a bond to the Court undertaking to produce the property of a judgment-debtor which had been released from attachment upon that undertaking, it was held that Section 145, would be inapplicable but that the bond could be enforced by execution.

6. In our opinion this recognised power of the Court to enforce execution against a security independently of Section 145 deprives of any further force the reason in Subraya Pillai v. Sathanatha Pandaram 48 Ind. Cas. 940 : (1918) M.W.N. 764 for restricting Section 145 to suretyships undertaken through the Court.

7. Furthermore, there is the direct decision in Joyman Bewa v. Easin Sarkar 95 Ind. Cas. 483 : 53 C. 515 : 30 C.W.N. 609 : 43 C.L.J. 493 : A.I.R. 1926 Cal. 877 that it is not essential for the purpose of executing a decree against a surety under the provision of Section 145(a) that the contract of suretyship should be in form of a bond or that it should be in favour of the Court.

8. We think that the language of Section 145(a) is wide enough to apply to any contract of suretyships whereby a personal liability has been undertaken for the performance of a decree. The order of the Subordinate Judge directing execution to issue against the appellant was correct, and the appeal must be dismissed with costs.


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