Lalji Sahoy vs Odoya Sunderi Mitra And Ors. on 12 July, 1887

Calcutta High Court
Lalji Sahoy vs Odoya Sunderi Mitra And Ors. on 12 July, 1887
Equivalent citations: (1887) ILR 14 Cal 757
Bench: Tottenham, Norris


1. The appellant in this case became surety in the Court of the Munsif of Gya, under Section 336 of the Code of Civil Procedure, for a judgment-debtor who had been arrested in execution of a decree, and who expressed his intention under that section to apply under Chapter XX of the Code to be declared an insolvent.

2. The debtor was released on the security of the present appellant, and of another person who joined in executing the security bond. But he made DO application to be declared an insolvent, and the appellant failed to produce him, when called upon to do so, some six months after the transaction.

3. The present appeal, is against the order of the Munsif, made with reference to the last clause of Section 336 and to Section 253, and confirmed by the District Judge in appeal, directing that the decree be executed against the sureties. One only of them appealed against this order. He relies upon the following facts as justifying his appeal: (After stating the facts as above the judgment proceeded).

4. The contentions urged on behalf of the appellant were that, so far as he was concerned, the security bond created a liability for no more than Rs. 100; that the obligation had been sufficiently discharged by the appearance of the judgment-debtor in support of his application to set aside the ex parte decree; that the decree could not be executed against a surety who had assumed that character after the decree had been passed; and that the dismissal of the decree-holder’s case on the 21st of February 1885, had the effect of discharging the security taken in pursuance of that application.

5. None of these contentions except the last appear to us to possess any force. The security bond on the face of it clearly binds both the sureties, jointly and severally, to make good the whole amount therein recited; and the terms of this bond cannot be modified by any precedent negotiation or petition. Again, it cannot seriously he urged that the obligation to produce the debtor when called upon is discharged by the voluntary appearance of the latter, not in obedience to such call or for the purpose of satisfying the decree, but for the purpose of trying to get rid of that decree, and followed as it was by the debtor’s disappearance on the failure of this attempt. And it is noteworthy that the production of the debtor does not terminate the liability of a surety under Section 336, for if the former fails to apply to be declared an insolvent, it is in the discretion of the Court either to realize the security or commit the debtor to jail in execution of the decree. The contention that a decree cannot be executed against a surety who becomes one after the passing of the decree is negatived by the express provisions of the Code ; for the last clause of Section 336 enacts that in the case of a surety such security may be realized in manner provided by Section 253. And the manner therein provided is as follows : “The decree may be executed against him to the extent to which he has rendered himself liable in the same manner as a decree may be executed against a defendant, provided that such notice in writing as the Court in each case thinks sufficient has been given to the surety.”

6. These objections, therefore, do not avail the appellant, and we have no doubt that upon the judgment-debtor’s failure to apply within one month of his release to be declared an insolvent, the sureties became liable for the amount recited in their bond to he realized from them in execution of the decree. But we are not prepared to hold that the liability continued to exist after the decree-holder’s application for execution had been dismissed. It seems to us that the security bond has reference only to the proceeding actually before the Court; and that the power reserved to the Court under Section 336 to realize the security in execution of the decree cannot be exercised when the execution proceeding, having been dismissed, is no longer in existence. The dismissal of the application would undoubtedly result in the discharge of the debtor if in custody, and in the release of any property attached under the decree: and we cannot see chat the property of a surety is more stringently bound than that of the debtor himself, unless it be expressly so provided in the bond. We think, therefore that the dismissal of the decree-holder’s application on the 21st of February 1885, operated as a discharge of the surety.

7. The Munsif speaks of this proceeding as if it had merely temporarily “struck off” the execution proceeding, keeping it in statu quo and by no means disposing of it; but the order in the order sheet is a distinct dismissal of the case, and it necessitated an entirely fresh application for execution. That fresh application could not, we think, for the reasons above stated, be enforced against the surety in the previous case.

8. We, therefore, set aside the order of the lower Appellate Court, and so far as the appellant is concerned we reverse the order of the Munsif with costs in all the Courts.

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