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NabIn Chandra Hazari Vs. Mirtunjoy Barick - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1914Cal162,(1914)ILR41Cal50
AppellantNabIn Chandra Hazari
RespondentMirtunjoy Barick
Cases ReferredKrishnan Nayar v. Ittinan Nayar
Excerpt:
execution of decree - judgment-debtor, death of--insolvency--civil procedure code (act v of 1908), section 55(4)--surety, discharge of. - .....undertaking given by a surety that the judgment-debtor would apply in insolvency within a specified time, and that he would appear in court whenever he was required to do so. before the time of his appearance in court had arrived, the judgment-debtor died, and it was therefore impossible for the surety to produce him. the lower appellate court has held that thereupon the decree-holder loses his remedy against the surety. this is the correct view of the law, for the event which occurred was not in contemplation of either party and, therefore, put an end to the obligation that there was under the contract. this view is in accordance with the ruling laid down in the case of krishnan nayar v. ittinan nayar (1901) i.l.r. 24 mad. 637.2. the result is that this appeal on behalf of the.....
Judgment:

Stephen and Mullick, JJ.

1. In this case the appellant decree-holder applied to enforce the conditions of an undertaking given by a surety that the judgment-debtor would apply in insolvency within a specified time, and that he would appear in Court whenever he was required to do so. Before the time of his appearance in Court had arrived, the judgment-debtor died, and it was therefore impossible for the surety to produce him. The lower Appellate Court has held that thereupon the decree-holder loses his remedy against the surety. This is the correct view of the law, for the event which occurred was not in contemplation of either party and, therefore, put an end to the obligation that there was under the contract. This view is in accordance with the ruling laid down in the case of Krishnan Nayar v. Ittinan Nayar (1901) I.L.R. 24 Mad. 637.

2. The result is that this appeal on behalf of the decree-holder is dismissed with costs.


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