Venkapa Naik vs Baslingapa Bin Kotrabasapa on 18 July, 1887

Bombay High Court
Venkapa Naik vs Baslingapa Bin Kotrabasapa on 18 July, 1887
Equivalent citations: (1888) ILR 12 Bom 411
Author: West
Bench: West, Birdwood


West, J.

1. The cases cited in argument make it clear that under Act VIII of 1859 and the supplemental Act XXIII of 1861 the ordinary mode of enforcing payment by a surety was by summary process in execution, not by means of a separate suit. This was so equally whether the security had been taken in the course of the original suit or of the appeal. In the case of security taken after decree, and when no litigation between the parties was actually pending, a difference seems to have been recognized in some instances, but it is not necessary to discuss those cases at present. In the new law embodied in Act XIV of 1882, Section 253 says that execution of a decree in an original suit may proceed against one who has become surety for its satisfaction pending the suit, in the same manner as against the defendant. Section 583 again says that the Court shall on due application execute a decree in appeal “according to the rules hereinbefore prescribed for the execution of decrees in suits.” This should apparently empower the Court to proceed against a surety for the fulfillment of the decree in appeal who has accepted that obligation under Section 546 in the same way as against a surety who has become liable under Section 253 to satisfy a decree of a Court of first instance. No reason could be adduced by the respondent’s pleader why a surety in the one case should not be subject to the same liabilities as in the other, and the necessity for a prompt execution is the greater in proportion as the previous contest has been prolonged.

2. But it is contended that the express insertion of the words “in an original suit” in Section 253 implies that, should security be taken otherwise than in an original suit, the rule is not meant to be applied. There is undoubtedly some weight in this argument, and it seems to have been felt on some occasions as having great force; but we should have expected a very material change of the law to have been more clearly indicated than by this uncertain inference. It would be a change at variance with general harmony of principle in the Code, and on that account also should have been very plainly expressed. The argument that the mere adoption by Section 583 of the rules of execution prescribed for decrees in original suits does not imply the adoption of a substantive rule as to the liability of a surety, does not seem to be of any weight. If the liability and the mode of enforcing it could properly be dealt with in one section of a Code of procedure, it could with equal propriety be adopted in another section of the same Code. The mere introduction of the words “in an original suit” will not, we think, bear the stress put upon them. The case of Sough v. Windus L.R., 12 Q.B. Div., at p. 228 shows that the use of a superfluous word or phrase is an insufficient ground for an inference of a special intention of the Legislature.

3. The forms framed by this Court under Section 652 of the Code have the force of law, except where they are inconsistent with the Code. The form of surety bonds prescribed and followed in the present case was drawn up under this power. It makes a surety directly liable to the Court, not merely to the judgment-creditor. Such a rule is not inconsistent with the provisions of the Code, though it supplements them. It has been in operation for many years without question.

4. The surety, therefore, is, we think, directly liable, as is the judgment-debtor under the final decree, and we accordingly reverse the decree in execution of the Subordinate Judge, and direct that the application as against the respondent be dealt with in the execution proceedings. Costs of this appeal to be borne by the respondent.

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