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National Coal Co., Ltd. Vs. Kshitish Bose and Co. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal818,95Ind.Cas.409
AppellantNational Coal Co., Ltd.
RespondentKshitish Bose and Co.
Cases ReferredTatum v. Evans
Excerpt:
civil prosedure code (act v of 1908), section 145, order xxxvii, rule 3 - leave to defend--surety--consent decree--surety, whether discharged. - .....decree was made and the terms of the-consent decree' provided for the payment of the amount decreed by instalments. the surety now claims to have been thereby discharged. so far as i am aware this point has never so far come before this court but in addition to earlier cases i have been referred to tatum v. evans (1886) 54 l. t, 386,. this case is very much to the point and it seems to me that the applicant must fail unless he can show that the surety either consented to the order or that he satisfied it or waived any rights that he might have. as to this there is a statement in the affidavit of batya charan srimani that the surety caused payment of two instalments to be made to the decree-holder on the 26th august and 2nd september last. that is denied, though it may be.....
Judgment:

Buckland, J.

1. This is an application for execution against a surety who executed a bond in favour of the Registrar in pursuance of an order giving leave to the defendant to defend a suit under Order XXXVII of the C. P. C. upon furnishing security.

3. When the suit came to trial a consent decree was made and the terms of the-consent decree' provided for the payment of the amount decreed by instalments. The surety now claims to have been thereby discharged. So far as I am aware this point has never so far come before this Court but in addition to earlier cases I have been referred to Tatum v. Evans (1886) 54 L. T, 386,. This case is very much to the point and it seems to me that the applicant must fail unless he can show that the surety either consented to the order or that he satisfied it or waived any rights that he might have. As to this there is a statement in the affidavit of Batya Charan Srimani that the surety caused payment of two instalments to be made to the decree-holder on the 26th August and 2nd September last. That is denied, though it may be questionable whether the affidavit so denying it is one that should be admitted, but I cannot act on a bare statement of that nature. If it was desired to rely upon such payments something more tangible, such as, a cheque, counterfoil, receipt or other similar document should have been exhibited or at least referred to. In the circumstances I am not prepared to act upon this statement. As, however, it was made in the affidavit and as the point as far as I am aware is new I enquired of learned Counsel whether his instructions would justify him in saying that it could be supported by any tangible evidence of that nature; but having regard to what he has informed me his instructions on the subject are, I do not think it would serve any useful purpose, to give the applicant an. opportunity of amplifying the statement.

4. In these circumstances the application must be dismissed with costs, Certified for Counsel.


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