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Brojendra Lall Dass Vs. Lakshmi NaraIn Khanna and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.149
AppellantBrojendra Lall Dass
RespondentLakshmi NaraIn Khanna and anr.
Excerpt:
civil procedure code (act v of 1908), section 145, scope of--surety, when liable. - .....section 145, code of civil procedure, for the execution of a decree against an alleged surety, lakshmi narain khanna, by the sale of two government promissory notes which, it is said, he had deposited as security for the decretal amount. the judgment-debtor is the son-in-law of the said lakshmi narain khanna and a warrant for his arrest having been issued, lakshmi narain khanna appeared before the first munsif of burdwan and threw on the table before him, according to the evidence, two government promissory notes for rs. 1,000 each, which he wished the court to take as security for the decretal amount which had been found due against his son-in-law and to stay further proceedings in execution pending an application to set aside the ex parte decree. the learned munsif refused to take.....
Judgment:

Fletcher, J.

1. This is an appeal from a judgment of the learned District Judge of Burdwan, dated the 31st March 1913, rejecting an application. The application that was before the learned Judge was an application under Section 145, Code of Civil Procedure, for the execution of a decree against an alleged surety, Lakshmi Narain Khanna, by the sale of two Government promissory notes which, it is said, he had deposited as security for the decretal amount. The judgment-debtor is the son-in-law of the said Lakshmi Narain Khanna and a warrant for his arrest having been issued, Lakshmi Narain Khanna appeared before the first Munsif of Burdwan and threw on the table before him, according to the evidence, two Government promissory notes for Rs. 1,000 each, which he wished the Court to take as security for the decretal amount which had been found due against his son-in-law and to stay further proceedings in execution pending an application to set aside the ex parte decree. The learned Munsif refused to take the two Government promissory notes which had been so thrown upon the table of his Court, on the ground that no formal application had been made. Then what happened seems to be somewhat in dispute. It is said that Babu Sailendra Nath Mukerjee, who was the Pleader engaged by the decree-holder, took the Government promissory notes and put them into his pocket. The story told by Babu Sailendra Nath Mukerjee is that there was an arrangement between him and Lakshmi Narain Khanna that he should hold the two Government promissory notes as security for the due fulfilment of the decree. The decretal amount not having been paid, the present application was lodged. The litigation seems to have occupied a considerable time. The point, however, may be dealt with very shortly. Section 145, Code of Civil Procedure, applies only where tire surety has rendered himself personally liable for the decretal amount. That is obvious because the section states so. Secondly, it would not be convenient to sell property in a suit that was not brought for that purpose. It is quite clear, therefore, that Section 145 only applies where the surety has rendered himself personally liable for the decretal amount and such liability can only be enforced against him to the extent to which he has become personally liable. Accepting the story told by Babu Sailendra Nath Mukerjee, how does the case come under Section 145, Code of Civil Procedure? According to the story told by Babu Sailendra Nath the agreement was that we,' that is the decree-holders, would execute the decree and realize the decretal amount by sale of the promissory note. 'Note' is obviously a mistake for 'notes.' Therefore, first of all it is to be seen whether Lakshmi Narain Khanna was a surety for the purpose of this decree. Clearly he did not acknowledge his personal liability. There was no contract of guarantee within the meaning of Section 126 of the Indian Contract Act. All that he had dono was that he deposited by way of security, or collateral security; if we accept Sailendra Babu's evidence, those two promissory notes were to remain as-security for the amount due under the decree. That does not come within Section 145. If the story is true, then Lakshmi Narain has only created an equitab'e charge upon the two Government promissory notes in favour of the decree-holder' by depositing them in that manner to secure the amount due under the decree and, if that is the true arrangement, as Sailendra Babu says it is, then that liability can only be enforced in a regular suit for the purpose of enforcing the charge that has been created by the deposit of the two Government promissory notes. The present proceedings have altogether been misconceived and I think the learned Judge of the Court below was quite right when he came to the conclusion that no contract, as provided by Section 145 of the Code of Civil Procedure, had been established and that no personal liability having been undertaken by Lakshmi Narain Khanna his liability as mortgagor of these two Government promissory notes could not be enforced in an application under Section 145, Code of Civil Procedure. I think the conclusion arrived at by the learned Judge of the Court below is right and the present appeal fails and must be dismissed with costs, two gold mohurs.

2. Teunon, J.--I agree.


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