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Sm. Kunja Moyee Dassi Vs. Akshoy Kumar Das - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 61 of 1958
Judge
Reported inAIR1961Cal43
ActsCode of Civil Procedure (CPC) , 1908 - Section 145
AppellantSm. Kunja Moyee Dassi
RespondentAkshoy Kumar Das
Appellant AdvocateR.B. Baksi and ;S.B. Baksi, Advs.
Respondent AdvocateMurari Mohan Mukherjee, Adv.
DispositionAppeal dismissed
Cases ReferredShyamlal Ram Krishna v. Takhatmal Bodhraj
Excerpt:
- .....lands and were no longer entitled to hold the same. there was also a prayer for recovery of mesne profits or bhag produce for 1355 and 1356 b. s. and for mesne profits up to the date of delivery of possession or for three years after the decree. during the pendency of the suit the appellant filed an application for temporary injunction, restraining the defendants panchanan rong and others from cutting the paddy which they had grown on the suit land. on 22-12-1954 the defendants filed an application for permission to cut and remove the paddy grown by themselves. the learned subordinate judge by an order dated 6-1-1956 permitted the defendants to harvest the paddy on furnishing security to the extent of rs. 800/-. the defendants furnished such security and akshoy kumar das who is.....
Judgment:

S.K. Sen, J.

1. This miscellaneous appeal is directed against an order of the learned District Judge, Howrah, setting aside an order of the Subordinate Judge, 3rd Court, Howrah, for the execution of a security bond for the sum of Rs. 800/- against the surety Akshoy Kumar Das. The facts are briefly as follows:- The appellant Kunja Moyee Dassi instituted a suit against Panchanan Rong and others for declaration of her title to the suit property and for recovery of khas possession therein on the allegation that the defendants were holders of chakran lands and were no longer entitled to hold the same. There was also a prayer for recovery of mesne profits or bhag produce for 1355 and 1356 B. S. and for mesne profits up to the date of delivery of possession or for three years after the decree. During the pendency of the suit the appellant filed an application for temporary injunction, restraining the defendants Panchanan Rong and others from cutting the paddy which they had grown on the suit land. On 22-12-1954 the defendants filed an application for permission to cut and remove the paddy grown by themselves. The learned Subordinate Judge by an order dated 6-1-1956 permitted the defendants to harvest the paddy on furnishing security to the extent of Rs. 800/-. The defendants furnished such security and Akshoy Kumar Das who is respondent in this Court stood surety to the extent of Rs. 800/-. In the security bond it was stated that if the defendants lost the suit the surety would pay Rs. 800/- to the plaintiff appellant Kunja Moyee Dassi. The plaintiff appellant obtained a decree declaring her title and for recovery of khas possession and she also got a decree for price of bhag produce for 1355 and 1356 B. S. and it was provided that on paying Court fees for the same there would be a decree, for mesne profits up to the date of the decree. The suit was decreed on 14-7-1955 corresponding to 1st Sravan 1352 B. S. so that on filing proper Court fees the plaintiff wag entitled to a decree for mesne profits for 1357 to 1361 B. S. But such Court fees were not put in and therefore no decree for mesne profits for the period from 1357 to 1361 B. S. was passed. The plaintiff without paying such Court fees and obtaining a decree for recovery of mesne profits for the period 1357 to 1361 B. S. started an execution proceeding against the surety Akshoy Kumar Das for recovery of Rs. 800/- which he had undertaken to pay under the terms of the security bond in case the defendants lost their suit. There was an objection by the surety Akshoy Kumar Das to the effect that the decree holder was not entitled to recover Rs. 800/- from him because firstly the decree holders had not put in Court fees in respect of the mesne profits for the period 1357 to 1361 B. S. and secondly because the mesne profits of the land for years 1355 and 1356 B. S. had been assessed at Rs. 266/- per year and that the Price of the paddy and the straw would not exceed Rs. 290/- at most after deducting half the price of the produce for the cost of cultivation, and that in the circumstances even if the plaintiff had filed court fees the plaintiff could only recover up to maximum amount of Rs. 290/- against him and not the sum of Rs. 800/-. The learned Subordinate Judge, however, overruled the objection of the surety Akshoy Kumar Das and held that under the terms of the security bond which the surety had executed the surety had bound himself to pay Rs. 800/- if the defendants lost the suit, and as the defendants had lost the suit, the surety could not escape the liability. Accordingly, the objection of the surety under Section 47 of the Cr. P. C. was dismissed.

2. There was an appeal to the District Judge, Howrah, and the learned District Judge upheld the objection of the surety viz., that as the Plaintiff had not yet got a decree for the mesne profits for 1361 B. S. by paying appropriate Court fees on the amount, the order or decree for recovery of any money would not be executed against the surety. In this connection the learned District Judge observed that no doubt that there was the language of the security bond that the surety would be liable to pay Rs. 800/- if the defendants failed in the suit; but still the fact remained that the defendants who had grown the paddy in 1361 B. S. were permitted to reap and take away the paddy on condition offurnishing a security, and the Court intended that the defendants and the surety should be liable for the mesne profits for the year 1361 B. S. if the plaintiff succeeded in getting a decree for such mesne profits, and that the decree could be executed against the surety only after such decree for mesne profits had been passed, and to the extent of such mesne profits. Accordingly the appeal was allowed and the surety's objection under Section 47 of the C. P. C. was also allowed and the execution case was dismissed as premature, it being held that the plaintiff decree-holder should first have obtained a decree in respect of the mesne profit for 1361 B. S. by paying the necessary Court fees and then proceeded to execute the decretal amount for mesne profits for 1361 B. S.

3. Against that order the plaintiff decree-holder Kunja Moyee Dassi has preferred this appeal. Mr. R. B. Bakshi appearing for the appellant has repeated his argument which found favour with the learned Subordinate Judge viz,, that the surety having made himself liable by the terms of the security bond to pay Rs. 800/- if the defendants lost the suit, could not resile from the terms of the bond and was bound to pay Rs. 800/-, because the defendant had admittedly lost the suit and had not filed any appeal in a superior Court against the decree which had been passed against them. Section 145 of the C. P. C. is the provision of law under which a decree or order for the recovery of money can be executed against the surety, and we have to see whether under the terms of Section 145 the security bond can be executed against the surety Akshoy Kumar Das. Section 145 provides that where any person has become liable as surety (a) for the performance of any decree or any part thereof, or (b) for the restitution of any property taken in execution of a clears or, (c) for the payment of any money or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon, the decree or order 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, and such person shall, for the purposes of appeal, be deemed to be a party within the meaning of Section 47.

4. From the terms of section it is clear that what can be executed against the surety is the decree or order passed by the Court and it can be executed to the extent to which the surety has rendered himself personally liable. In the present case the order of the Court in connection with the security bond merely was the order dated 6-1-1955, where the learned Subordinate Judge stated:

'On furnishing security to the extent of Rs. 800/- by 10-1-1955 by defendant No. 1, the defendant No. 1 will be permitted to cut paddy and thereupon the interim order of injunction will be vacated'.

Thus the only order was the order to furnish security. That by itself is not a decree or order for payment of any money by any party to the suit, for which the surety could be bound, just as the Party would be bound in execution of the decree. Accordingly it is difficult to see how in execution of the order passed by the learned Subordinate Judge thesum of Rs. 800/- could be sought to be recovered against the surety. In this connection we may refer to a decision of a Division Bench of the Madras High Court viz., Kurugodappa v. Soogamma, ILR 41 Mad 40 : (AIR 1918 Mad 661), where security was furnished by the next friend of a minor and the next friend was permitted to draw from the Court moneys due to the minor under a decree on furnishing such security; on default in accounting, the amount due to the estate of the minor was directed to be realised by the attachment of the property of the surety. It was held that the order of attachment was without jurisdiction, as under Section 145 of the C. P. C. the Court could not proceed against the property of the surety without there being a separate suit for the execution of the security bond. In the course of the judgment it was observed by one of the learned Judges viz., Sadasiva Ayyar J. that Section 145 of the C. P. C., which allows execution against the surety, can apply only when the court has passed an order or decree which is intended to be an order or decree enforceable through execution by one or some of the parties to a suit or other proceedings against another party or parties thereto, and that in other circumstances Section 145 of the C. P. C. could not be held to apply. Next we may refer to the Full Bench decision of the Allahabad High Court viz. Khairun-nissa Bibi v. Oudh Commercial Bank : AIR1933All260 . In that case a final decree for sale of a mortgage was put in execution and one Khairunnissa who was impleaded as an heir to certain items of mortgaged property in her own right, & she instituted a suit against the decree holder for the declaration that the mortgage decree was not binding on her in respect of the items of property belonging to her in her own right. The suit was dismissed and Khairunnisa filed an appeal to the High Court and applied for stay of the execution of the final decree for sale. The decree-holder objected that he would suffer loss of interest if the sale was to be stayed, the loss of interest being estimated to be about Rs. 6000/-. It was ordered that if Khairunnissa executed a security bond for Rs. 6000/-to cover the loss of interest, her application for stay of sale in execution of the final mortgage decree would be granted. Khairunnissa furnished such a security bond and the execution of the decree was stayed. Khairunnissa's appeal was eventually dismissed and the decree-holder sought to realise Rs. 6000/- by sale of the property hypothecated in the security bond. It was held that Section 145 of the C. P. C. had no application to the facts of the present case, and sale of the property hypothecated in the security bond could only be enforced by a separate suit. In that connection their Lordships made the observation that the order regarding furnishing of security was not an executable order but was in the nature of a declaratory order; and as there was no decree or order capable of execution regarding the sum of Rs. 6000/- Section 47 or Section 145 of the C. P. C. could have no application. Thus in that case also it was laid down that unless there was an order capable of execution for the recovery of a sum of money for which the security bond had been furnished, Section 145 of the C. P. C. could have no application.

5. In the circumstances, we must agree thatthe learned District Judge was right in the view he took that whatever be the actual terms embodied in the security bond which was executed by the surety, still only when the decree holder got an effective decree for the mesue profits for 1361 B. S. by filing the required Court fees for the estimated mesne profits for the period from 1357 to 1361 B. S., the decree holder would be in a position to execute the decree so far it related to the claim for 1361 B. S. against the surety, but until then the application of the decree holder for execution of the security bond must be regarded as premature.

6. Mr. Bakshi appearing for the appellant has referred to certain cases in support of his contention that even if there is no order by the Court which is capable of execution against a party to the suit or proceeding, but the surety has made himself. liable to pay a certain sum of money on the happening of a certain event, there may be an execution of the security bond to that extent against the surety. We are not, however, satisfied that the cases relied upon by him really support such a proposition, which would be agaiast the terms of Section 345 of the Cr. P. C. itself. Mr. Bakshi has referred, among other cases, to the decision of the Judicial Committee in Kunwar Rohani Ramandhwaj Prasad Singh v. Thakur Har Prasad Singh . In that case, pending the decision of an appeal from a decree for ejectment, the plaintiff obtained possession on execution of a security bond undertaking liability, up to a certain sum, for such mesne profits as might be found due by the plaintiff in respect of the period o his possession in the event of the decree being set aside, and a surety executed the bond along with the plaintiff. It was held that the remedy of the defendant against the surety on the success of his appeal would be by way of an application to the trial Court under Sections 144 and 145 of the C. P. C. But the procedure was laid down for the enforcement of the security bond against the surety, namely, that the Subordinate Judge would assess in the presence of the plaintiff the amount of mesne profits and damages due from the plaintiff in respect of the period of his possession of the Estate and then if the mesne profits due were found to exceed the amount for which the surety had made himself personally liable, the claim for mesne profits against the plaintiff could be executed against the surety to the extent to which he had rendered himself personally liable. In that case also, therefore, there would, first, be an order for the payment of mesne profits, the amount being determined by the Court of the Subordinate Judge on the application of the interested party, and only after the mesne profits had been determined, there could be execution against the surety to the extent to which he had made himself personally liable, provided the amount was not more than the amount of the mesne profits found. In that case also, the Judicial Committee did not by any means hold that the surety would be liable merely because he hadmade himself liable to nay a certain sum in the event of the plaintiff losing the appeal in the High Court. This decision of the Privy Council, therefore, does not support the contention of Mr. Bakshi,

7. Mr. Bakshi has also referred to a recent case of the Assam High Court, namely, Sukriti Bala Dutta v. Hemanta Kumar Nag, AIR 1957 Assam 153. In that case there was a decree against the defendant for a sum exceeding Rs. 14,000/-. There was an adjustment at the execution stage, and it was settled that the decree would be deemed to be satisfied on payment of the sum of Rs. 9,000/- only by the defendant. A compromise petition was filed in the executing Court by which the decree was adjusted at Rs. 9,000/-, out of which Rs. 500/- was paid in cash and a security bond was executed by which a surety made himself liable for the due Payment of the adjusted amount by the judgment-debtor. It was held that the amount could be recovered in execution against the surety. But there it was the order of the Court as recorded after the adjustment for the recovery of the sum of Rs. 9,000/-which was being executed against the surety. This case, therefore, also supports our interpretation of Section 145 of the C. P. C., that what can be executed against the surety is an order or decree by the Court for payment of a certain sum of money against one of the parties, to the extent to which the surety has made himself liable for the payment of that money.

8. Next Mr. Bakshi has referred to a decision of this High Court in Mohendranath Banerji v. Satish Chandra Choudhuri : AIR1934Cal569 . It was held in that case that a security bond must be strictly construed according to its own terms; but where there was doubt as to the true construction of a security bond, the bond must be considered in the light of the order directing the security to be given. The appellant had been directed to execute a security bond making himself liable to the extent of Rs. 5,000/- for interest accumulating during the stay of execution, but the bond he actually executed made himself liable for what should be payable by him under the appellate decree. The appellate decree merely dismissed the appeal, and the appellant, as puisne mortgagee, was not liable under the original decree to pay any money, and so he contended that he was not liable to make any payment under the security bond. But having looked into the order of the Court and the relevant circumstances, their Lordships came to the conclusion that by the order of the appellate Court, the security bond was executed to indemnify the decree-holders for the interest accumulating on account of the postponement of the sale, by making the surety personally liable up to Rs. 5,000/- and as the interest accrued, during the pendency of the sale On account of the pendency of the appeal had come to over Rs. 5,000/-, it was held that the surety was liable under the bond to pay the sum of Rs. 5,000/- to the decree-holders, and this amount could be recovered by execution of the order of the Court under Section 145 of the Civil Procedure Code. Thus in that case also a Division Bench of this Court did not order the execution of the security bond by itself ; but the order that the Court had purported to pass was with the intention of indemnifying the decree-holders for the loss of interest which they would suffer by the postponment of the sale during the pendency of the appeal. It was presumed that there was an order of the appellate Court directing the payment of the accumulated interest on the decretal amount up to a sum not exceeding Rs. 5,000/- for which the security bond had been furnished, and in that view, the sumof Rs. 5,000/- was held to be recoverable against the surety. This case also, therefore, does not go to signify that apart from the execution of any order or decree by the Court, any security bond can be enforced under the provisions of Section 145 of the C. P. C.

9. Lastly, Mr. Bakshi has referred to a case of the Madhya Pradesh High Court in Shyamlal Ram Krishna v. Takhatmal Bodhraj, : AIR1957MP98 . Their Lordships of the Madhya Pradesh High Court were concerned in appeal with a suit for dissolution of a partnership and for accounts of the partnership and recovery of the sum found due on accounting to the plaintiff. There were some bills submitted in the name of the defendant to the Military Authorities and the defendants were permitted to collect the amount of the bills after furnishing security for the amount. The question was whether the decree which was ultimately passed in favour of the plaintiff could be executed against the surety to the extent of the amount to which he had made himself personally liable. It was held that the security bond could be executed against the surety to the extent to which he had made himself liable, and it should be noted that a decree had been passed against the defendants on dissolution of partnership and, therefore, that decree was being executed to the extent to which the surety had made himself liable in connection with the permission granted to the defendants to collect the amount of the bills from the Military Authorities, which represented the assets of the partnership. This case also, therefore, does not, in our opinion, support the contention of Mr. Bakshi that independently of any order or decree of the Court by which one party to the suit could recover money against another party, there can be realisation of any money from a surety who has furnished a security bond. Accordingly, this appeal fails and is dismissed with costs.

N.K. Sen, J.

10. I agree.


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