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Chutterdharee Lall Vs. Rambelashee Koer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1878)ILR3Cal319
AppellantChutterdharee Lall
RespondentRambelashee Koer and ors.
Cases Referred and Gujendro Narain Roy v. Hemanginee Dassee
Excerpt:
security bond - surety--execution--act viii of 1859, sections 204, 342. - .....but before doing so, it will, of course, be necessary that the decree-holder should give the surety notice of his intention to proceed against him instead of proceeding against the original judgment-debtor; he should be served with notice to show cause why the decree should not be executed against him.3. we may also observe that in this case the original surety appears to be dead. it will, therefore, also be necessary, unless it has already been done in an earlier stage of the proceedings, to issue a notice under section 216 before any steps are taken for enforcing the decree against the respondents.[1] [section 204: whenever a person has become liable as security for the performance of a decree or of any part thereof, the decree may be executed decree against sureties. against.....
Judgment:

Ainslie, J.

1. It appears to us that this case is clearly distinguishable from the cases of Ram Kishen Doss v. Hurkhoo Singh 7 W.R. 329 and Gujendro Narain Roy v. Hemanginee Dassee 13 W.R. 35 in which it was held that Section 204[1] I does not apply to parties who have become sureties after the decree. In the present case the security was demanded and taken under Section 342 before the decree, for the purpose of securing to the respondent his costs in the event of his being successful.

2. The case must, therefore, go back to the Subordinate Judge in order that he may allow execution to proceed against the sureties; but before doing so, it will, of course, be necessary that the decree-holder should give the surety notice of his intention to proceed against him instead of proceeding against the original judgment-debtor; he should be served with notice to show cause why the decree should not be executed against him.

3. We may also observe that in this case the original surety appears to be dead. It will, therefore, also be necessary, unless it has already been done in an earlier stage of the proceedings, to issue a notice under Section 216 before any steps are taken for enforcing the decree against the respondents.

[1] [Section 204: Whenever a person has become liable as security for the performance of a

decree or of any part thereof, the decree may be executed

Decree against sureties. against such person to the extent to which he has rendered him-

self liable, in the same manner as a decree may be enforced

against a defendant.]


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