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Ram Dass Goswami Vs. Sudha Krishna Laik and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal343
AppellantRam Dass Goswami
RespondentSudha Krishna Laik and ors.
Excerpt:
- .....due course, admitted and registered, on the appellant before us standing surety on behalf of the tenants defendants, against whom the decree for rent was passed. the application was ultimately dismissed for want of prosecution. the decree-holder landlord, the respondent in this appeal, thereupon filed an application for execution of his decree, by means of attachment of moveables, and in the alternative by arrest. so far as this application for execution was concerned, it was made against the surety, that is, the appellant before us. an objection was preferred on behalf of the surety, under section 47, civil p.c. it was stated that the munsif had no jurisdiction under the law, to accept a surety bond in lieu of deposit, as contemplated by section 153(a), ben. ten act, and the surety.....
Judgment:

Guha, J.

1. The respondent in this appeal as a landlord succeeded in obtaining an ox parte decree in the Rent Suit No. 956 of 1929 in the Court of the Munsif at Asansole, against his tenants, the defendants in the suit, for a sum of Rs. 422-1-9, with costs and interest. After the ex parte decree was passed the tenants, the defendants in the suit for rent, filed an application under Section 153(a), 'Ben. Ten. Act, for an order to set aside the ex parte decree passed against them. The application so made by the tenants, was, in due course, admitted and registered, on the appellant before us standing surety on behalf of the tenants defendants, against whom the decree for rent was passed. The application was ultimately dismissed for want of prosecution. The decree-holder landlord, the respondent in this appeal, thereupon filed an application for execution of his decree, by means of attachment of moveables, and in the alternative by arrest. So far as this application for execution was concerned, it was made against the surety, that is, the appellant before us. An objection was preferred on behalf of the surety, under Section 47, Civil P.C. It was stated that the Munsif had no jurisdiction under the law, to accept a surety bond in lieu of deposit, as contemplated by Section 153(a), Ben. Ten Act, and the surety objector was not therefore liable as such. The objection so raised under Section 47 of the Code was allowed by the Munsif. On appeal by the decree-holder, the respondent in this Court, the decision of the Munsif was reversed, and the execution has been allowed to be proceeded with so far as the surety, appellant in this Court, was concerned. The grounds that were raised by the surety, before the Munsif, have been pressed before us in support of the appeal. It appears to us that although the order of the Munsif accepting a surety bond from the appellant was an erroneous order under the law, so far as the provisions of Section 153, Ben. Ten. Act, went, it could not be said that the error in law committed by the Munsif, in the matter of the acceptance of the surety bond, in compliance with the provisions of Section 153(a) was without jurisdiction and it could not therefore be held that the appellant, as surety, was not a person against whom the execution could be levied by the decree-holder. In this view of the case the appeal must be dismissed, and we direct accordingly. We make no order as to costs in this appeal. The rule which was granted by this Court in connexion with this appeal stands discharged. Let the record be sent down as early as possible.

M.C. Ghose, J.

2. I agree.


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