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Gopi Nath Chowdhry Vs. Benode Lal Roy Chowdhry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal162
AppellantGopi Nath Chowdhry
RespondentBenode Lal Roy Chowdhry
Cases ReferredMingale Antone Kane v. Ramchandra Baje
Excerpt:
security bond - assignment of security bond--assignee of security bond, rights of--suit on security bond--civil procedure code (act xiv of 1882) section 349. - .....by your honour on the disposal of the said insolvency case, or before or after the same. if i fail to produce him upon demand by your honour then i shall pay to the empress of india a fine of rs. 3,500.' then there is added: 'let it be stated that if upon demand by the court i fail to produce the said dwarka nath roy in court, i shall pay the whole of the said amount of rupees three thousand and five hundred mentioned in this security bond. if i fail to pay the same, then the amount shall be realized from my moveable and immoveable properties and from my person.'2. the district judge directed the subordinate judge before whom the execution proceedings were pending to call upon the surety to produce the judgment-debtor. the surety took no objection to this action on the part of the.....
Judgment:

Francis W. Maclean, C.J.

1. This is a suit upon a bond dated the 25th of February 1898 given to the District Judge of Dacca By that bond the defendant as surety undertook to produce a certain gentleman who had Med a petition for insolvency in that Court and we find these words in the bond: 'Accordingly I stand surety by executing this security bond do agree to produce the said judgment-debtor, Dwarka Nath Roy, when demanded by your Honour on the disposal of the said insolvency case, or before or after the same. If I fail to produce him upon demand by your Honour then I shall pay to the Empress of India a fine of Rs. 3,500.' Then there is added: 'Let it be stated that if upon demand by the Court I fail to produce the said Dwarka Nath Roy in Court, I shall pay the whole of the said amount of rupees three thousand and five hundred mentioned in this security bond. If I fail to pay the same, then the amount shall be realized from my moveable and immoveable properties and from my person.'

2. The District Judge directed the Subordinate Judge before whom the execution proceedings were pending to call upon the surety to produce the judgment-debtor. The surety took no objection to this action on the part of the Subordinate Judge but, before the Subordinate Judge, asked for time and he got it. Eventually the judgment-debtor was not produced, and on the 27th of March 1900 the District Judge assigned the bond to present plaintiffs who are now suing upon it. The Court below has decreed the suit.

3. Two objections are taken by the appellant: first, he says that there was no breach of the condition of the bond inasmuch as there was no demand made by the District Judge of Dacca to produce the judgment-debtor. There is no Substance in this objection. Having regard to tie nature of the bond and the circumstances under which the bond was given, the contention that the defendant is not liable to be sued because the District Judge himself did not personally demand the production of the, insolvent cannot, I think, be sustained. He authorised the Sub-ordinate Judge before whom the proceedings were pending to make the demand, and he made it, and no exception was ever taken by the defendant to this. The first point fails.

4. Then it is said that the District Judge had no power to assign the bond to the plaintiffs. I can find no authority for such proposition: nor has any been cited. It was held in the case of Mingale Antone Kane v. Ramchandra Baje (1894) I.L.R. 19 Bom. 694 that that was the proper course to adopt, and I think it was.

5. I think it would be a useful thing if there was a prescribed form of bond for these cases.

6. The appeal is dismissed with costs.

Geidt J.

7. I concur.


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