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Firm Tokani Prosad Kamini Kumar Paul Vs. Shyamapada Banerjee (Surety) and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1945Cal193
AppellantFirm Tokani Prosad Kamini Kumar Paul
RespondentShyamapada Banerjee (Surety) and anr.
Cases ReferredRaj Raghubar Singh v. Jai Indra Bahadur Singh
Excerpt:
- .....liability was only contingent. in my judgment, this would be an unnatural interpretation of the bond. the surety made himself personally liable upto rs. 1600 and in addition, mortgaged certain properties as security. then, in the second place, although it is impossible to enforce the bond as a mortgage, even if the surety has a right to demand that the property referred to be sold before any other steps are taken in execution, it can be attached and sold in the execution proceedings. finally, mr. mitter asked that he might be allowed to amend the petition and convert it into an application for execution in order to avoid difficulties with regard to limitation. even so, the court would have to decide whether it could be considered as an application for execution before the date of.....
Judgment:

Henderson, J.

1. This appeal raises a question of procedure. The appellant is the decree-holder. He took proceedings to attach a motor car belonging to the judgment-debtor before judgment. One Nut Behary Das opposed the attachment on the ground that he was a mortgagee. The car was released on the respondents executing a security bond. The appellant has now filed an application in the suit asking for the sale of certain property mortgaged by the respondent in the security bond. The Munsif rejected the application and an appeal to the District Court was dismissed.

2. The first point for consideration is whether an appeal is at all competent. I may note that there is an alternative application in revision. As the point in dispute can be taken equally well in either, this is chiefly a matter of academic interest. Mr. Mitter has relied on a decision of a Division Bench of the Madras High Court in Ayyaswami Ayyar v. Sivakkiammal (33) 20 A.I.R. 1933 Mad. 780. The learned Judges do not state under what provision of the Code such an appeal is competent. If I have understood their judgment correctly, they thought that it would be unfair to the parties if there were no appeal and hence held that there was one. With all due respect to this opinion, it is, in my judgment, impossible to found a right of appeal on any such ground. The case is clearly not within Section 47 or Section 144 of the Code. The respondent was not and could not be a party to the suit. I find it impossible to bring the order within the definition of a decree. I shall, therefore, deal with the matter on the alternative application.

3. The procedure adopted by the decree-holder is based on the decision of the Privy Council in Raj Raghubar Singh v. Jai Indra Bahadur Singh (19) 6 A.I.R. 1919 P.C. 55. That was a very unusual case. The surety did not undertake any personal liability. He executed a document charging certain properties in favour of the Court. Their Lordships held that Section 47 or Section 144 could not apply. No suit could be brought as there was no person competent as mortgagee to institute a suit. In these circumstances, the only mode of enforcing it was for the Court itself to make an order in the suit on an application to which the sureties were parties for the sale of the property. The present case comes within the terms of Section 145(c) of the Code. Mr. Mitter contended that the personal liability was only contingent. In my judgment, this would be an unnatural interpretation of the bond. The surety made himself personally liable upto Rs. 1600 and in addition, mortgaged certain properties as security. Then, in the second place, although it is impossible to enforce the bond as a mortgage, even if the surety has a right to demand that the property referred to be sold before any other steps are taken in execution, it can be attached and sold in the execution proceedings. Finally, Mr. Mitter asked that he might be allowed to amend the petition and convert it into an application for execution in order to avoid difficulties with regard to limitation. Even so, the Court would have to decide whether it could be considered as an application for execution before the date of conversion. This is a ease in which the decree-holder must rely upon the provisions of Section 14, Limitation Act, if he can bring his case within it. The appeal is dismissed as incompetent, with costs, hearing fee, one gold mohur. The application is rejected.


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