RAMPRASAD DALSUKHRAM SONI Vs. SOMABHAI KACHARABHAI MAKWANA
LAWS(GJH)-1966-2-17
HIGH COURT OF GUJARAT
Decided on February 06,1966

RAMPRASAD DALSUKHRAM SONI Appellant
VERSUS
SOMABHAI KACHARABHAI MAKWANA Respondents

JUDGEMENT

- (1.) The appellant gave a surety bond for Rs. 5 0 in connection with an application for attachment before judgment by respondent No. 1 against respondent No. 2. A decree by consent of the parties was ultimately passed in favour of respondent No. 1 for Rs. 4 0 and odd. The decree was sought to be executed against the appellant. The contention of the learned counsel for the appellant is that the decree cannot be executed against the appellant. Cases of attachment before judgment are referred to in Order 38 Rule 5 C. P. Code. Under this Rule the Court may direct the defendant within a time to be fixed by it either to furnish security in such sum as may be specified in the order to produce and place at the disposal of the Court when required the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree or to appear and show cause why he should not furnish security. The procedure for enforcement of liability of surety is mentioned in section 145 C. P. Code which reads as follows:-"Where any person has become liable as surety:- (a) for the performance of any decree or any part thereof, or (b) for the restitution of any property taken in execution of a decree or (b) for the payment of any money or for the fulfillment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon the decree or order may be executed against him to the extent to which he has rendered himself personally liable 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:- Provided that such notice as the Court in each case thinks sufficient has been given to surety.
(2.) When security is given under Order 38 Rule 5 C. P. Code the surety is not for the performance of any decree or a part thereof but for the production before the Court of certain property liable to be attached. Therefore clause (a) of section 145 C. P. Code has no application It is only in cases falling under cl. (a) of section 145 C. P. Code that the decree itself can be executed. But under Order 38 Rule 5 C. P. Code in the case of attachment before judgment a surety is not for the performance of any decree or any part thereof. In cases falling under Order 38 Rule 5 C. P. Code a surety-bond must be taken in Form No. 6 of Appendix to the First Schedule to the C. P. Code. This form clearly shows that if there is a default on the part of the judgment debtor the Court has to judge the amount to be paid by the surety and such an order can be enforced and executed under the provisions of section 145 C. P. Code. Unfortunately the actual bond executed by the appellant does not strictly follow the form given in Form No. 6 of Appendix F to the First Schedule to the C. P. Code but it contains an undertaking by the judgment-debtor to act according to the order or decree which is finally passed by the Court and an under-taking by the surety to pay Rs. 5 0 if the defendant in the suit fails to carry out his undertaking. Such terms are outside the scope of the surety bond given under Order 38 Rule 5 C. P. Code.
(3.) In this case the decree also contains a reference to the appellant. In the case of a surety under Order 38 Rule 5 C. P. Code for attachment before judgment a decree cannot be passed against a surety because the surety is not party to the original suit. But the surety bond executed by the surety can be executed after complying with the provisions of sec. 145 C. P. Code. But the decree-holder unfortunately has tried to execute the original decree against the appellant who executed the surety bond. This is not correct. He should execute the surety-bond in the manner provided in section 145 C. P. Code after making the Court adjudge the amount payable by the surety under the surety bond executed by him. But the surety bond must be executed under the provisions of sec 145 C. P Code. The proper procedure has not been followed in this case and therefore the execution proceedings to execute the original decree against the appellant-surety in respect of the attachment before judgment under Order 38Rule 5 C. P. Code are set aside. It is open to the decree-holder to follow the provisions of section 145 C. P. Code.;


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