Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Pearey Lal vs Sita Ram on 2 August, 1928
Equivalent citations: AIR 1929 All 266 a, 113 Ind Cas 751
Author: Dalal


Dalal, J.

1. The respondent is not represented. Mr. Shabd Saran, on behalf of the appellant, has placed all the law available on the subject. The defendant was put in charge of attached property which it is said he misappropriated. The plaintiff thereupon brought the present suit on the ground that he was a decree-holder and had suffered loss by the defendant misappropriating the property. In my opinion the provisions of Section 145, Civil P.C., will bar such a suit. When any person has become liable as surety for the restitution of any property taken in execution of a decree, the decree may be executed against him in the manner herein provided for the execution of decrees, and such person shall for the purposes of appeal be deemed a party within the meaning of Section 47. The plaintiff, therefore, ought to have take action against the defendant in the execution department of the Court where he had obtained the decree and not brought a separate suit.

2. It was argued that the plaintiff had suffered damage and, therefore, he can bring the suit in tort. If this were granted, the plaintiff’s plaint is not sufficient. The plaint bases the cause of action on the misappropriation. It is not alleged therein that the decree has been incapable of execution or that the plaintiff would not be able to recover the balance of the decree from the judgment-debtor. If the plaintiff sued independently of the liability of the defendant as a suparddar in a civil Court, he ought to have made out a case of his suffering loss by the action of the defendant. He has not done so. I dismiss this application.

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