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Madras High Court
Woriur Commercial Bank, Limited, … vs Kaja Maroop Sahib on 23 March, 1926
Equivalent citations: (1927) 52 MLJ 523


JUDGMENT

1. We are unable to agree with the decisions of the Courts below that the surety was entitled to be discharged. In his bond he made two undertakings, viz. (1) that the judgment-debtor would within 30 days apply to be adjudicated insolvent and (2) that he (the surety) would produce the judgment-debtor on the dates fixed for his production. He agreed that on failure to comply with either of these conditions, he would himself satisfy the decree. His liability was not made to depend on the happening of the double event, viz., failure of the judgment-debtor to present an insolvency petition and failure of the surety to produce the judgment-debtor on the dates fixed. The security bond was in fact drawn up in accordance with the provisions of Section 55(4) of the Code of Civil Procedure, which provides for the security, being realised when there is any undertaking both to apply and to appear and a failure to comply with both undertakings.

2. The section has been so understood in the Courts of Bombay, Patna and Lahore (vide Makanji Mavji v. Bhukandas Nagardas “(1924) ILR 48 Bom. 500. Dedhraj v. Mahabir Prasad (1920) 5 PLJ 417. and Dharam Singh v. Nand Singh (1923) 78 IC 447. and by a Judge of this Court in Muthyala Venkobhamna v. Firm of Myachand Vemchand (1924) 86 IC 304. Under the circumstance that the petition in insolvency was not filed within one month the surety became liable, even though he produced the judgment-debtor when called upon, and he cannot plead that he should be excused because only one of the undertakings was broken.

3. The District Munsif’s order discharging the surety and the District Judge’s Order on appeal confirming the same are set aside. The execution petition must be restored to file and the District Munsif will proceed to dispose of the plea of the respondent that) the decree-holder was responsible for the delay in the filing of the insolvency petition.

4. Costs in the first Court will abide the result and will be provided in the final order. Costs in the Lower Appellate Court and here will be borne by the respondent.


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