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Muthuraju Sreenivasa Rao Vs. Mahammad Ghonse Sahib and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in115Ind.Cas.244
AppellantMuthuraju Sreenivasa Rao
RespondentMahammad Ghonse Sahib and anr.
Excerpt:
surety bond - construction--civil procedure, code (act v of 1908), order xxxviii, rule 2--bond in excess of terms of rule 2 effect of. - .....are even, clearer, he says that it must be deemed as if a decree is passed against himself and the surety bond is to take effect accordingly. how in the face of these clear words, the district judge came to the conclusion, that the surety bond is only for the appearance of the defendant, i am at a loss to make out. mr. thanikachalam chettiar, counsel for the respondent, contends that the surety bond goes beyond the terms of order xxxviii, rule 2. it is unnecessary for me to decide whether it is absolutely necessary that the surety bond should in every case strictly comply with the terms of that provision. in this case, however, the question does not arise; for the court never had to apply its mind to the terms of the bond at all, as the parties fixed by consent the surety bond in.....
Judgment:

Venkatasubba Rao, J.

1. The question is one of construction and presents no difficulty. The surety says in clear terms that his liability extends to paying the amount claimed in the suit, in the event of a decree being passed. The words that follow this clause are even, clearer, He says that it must be deemed as if a decree is passed against himself and the surety bond is to take effect accordingly. How in the face of these clear words, the District Judge came to the conclusion, that the surety bond is only for the appearance of the defendant, I am at a loss to make out. Mr. Thanikachalam Chettiar, Counsel for the respondent, contends that the surety bond goes beyond the terms of Order XXXVIII, Rule 2. It is unnecessary for me to decide whether it is absolutely necessary that the surety bond should in every case strictly comply with the terms of that provision. In this case, however, the question does not arise; for the Court never had to apply its mind to the terms of the bond at all, as the parties fixed by consent the surety bond in question. I am clearly of the opinion that the District Judge's order is wrong. It is reversed and the order of the District Munsif is restored. The respondent shall pay the costs of the petitioner throughout.


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