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Onkarmal Agarwala Vs. Rai Shehab Nritya Gopal Chaki - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal313(1),67Ind.Cas.885
AppellantOnkarmal Agarwala
RespondentRai Shehab Nritya Gopal Chaki
Excerpt:
surety, execution of decree against - surety's liability co-extensive with that of judgment-debtor--judgment-debtor's failure to have payments certified--surety, if affected. - .....certified. it may well be that the law as regards certification may not have any application as regards payments made by the surety himself,--a point, however, which we need not decide in this case, because it is not necessary. but that is not the case here. it is alleged that payments were made by the judgment-debtor and these payments were uncertified. the position of the surety appears to be this: the surety is bound so long as the judgment-debtor is bound. the judgment-debtor is bound so long as any payments which he may have made (and such alleged payments are contested in this case) are not certified to the court. therefore, we think that the argument of the appellant succeeds and the appeal must be decreed and the execution should be allowed to proceed. the appellant is.....
Judgment:

1. This appeal arises out of an application for execution by a decree-holder against a surety, who is the respondent in this appeal. The case of the surety is that the judgment-debtor for whom he stood surety, has paid the decree holder. This fact is contested, and it is also contended before us that we cannot take notice of any such payments, even if in fact they had been made, by reason of the circumstance that they were tot certified. It may well be that the law as regards certification may not have any application as regards payments made by the surety himself,--a point, however, which we need not decide in this case, because it is not necessary. But that is not the case here. It is alleged that payments were made by the judgment-debtor and these payments were uncertified. The position of the surety appears to be this: The surety is bound so long as the judgment-debtor is bound. The judgment-debtor is bound so long as any payments which he may have made (and such alleged payments are contested in this case) are not certified to the Court. Therefore, we think that the argument of the appellant succeeds and the appeal must be decreed and the execution should be allowed to proceed. The appellant is entitled to his costs in this Court and in both the Courts below. The hearing fee in this appeal is assessed at two gold mohurs.


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