Decided on July 23,1970

Satish Chandra Roy Appellant
Haridas Chakraborty And Another Respondents


R.S. Bindra, J. - (1.) This second appeal by Satish Chandra Roy, the decree -holder, is directed against the order, dated 15 -7 -1965, of the District Judge, Tripura by which the latter allowed an appeal of Haridas Chakraborty, the surety, against the order dated 1 -10 -1964. of the executing Court dismissing the objections of the surety against the execution application made by him (Satish Chandra Roy).
(2.) The facts of the case may first be briefly summarised to comprehend the precise point that arises for determination in the appeal. Satish Chandra Roy filed a Money Suit against Priyanath Nandi, on 24 -1 -1963 and on 4 -3 -1963 he made an application, supported by an affidavit, under R. 5 of O. 38. Civil Procedure Code, for attachment before judgment. That application was taken up by the Court for consideration on 18 -3 -1963. The Court made up its mind on that date to attach the properties listed in the affidavit and so issued a writ of attachment and simultaneously issued a notice to the defendant for showing cause within 15 days, why he should "not furnish security to the extent of the claim of the plaintiff". It was mentioned in the order, dated 18 -3 -1963, that if the defendant furnished security his properties should not be attached. The case was then adjourned to the next day namely. 19 -3 -1963. for the plaintiff to file "requisite". On the latter date the defendant Priyanath Nandi. appeared in the Court through a counsel and prayed for time to file abjections against the order for attachment before judgment. During the course of the same day, the defendant happened to file another petition "praying for time to furnish security as per previous order". The Court consequently gave him time until 21st of March, 1963 for furnishing security, failing which the relevant order stated, "writ of attachment will be issued". On 21 -3 -1963 Priyanath Nandi produced the security bond executed by Haridas Chakraborty, the respondent No. 1 herein. The Court directed the Sheristadar to check the bond and submit a report to the Court on 25 -3 -1963. On the latter date the bond was accepted. The relevant terms of the bond shall be detailed at the appropriate stage in the judgment.
(3.) The suit of Satish Chandra Roy was decreed against Priyanath on 9 -6 -1964. Soon thereafter Satish Chandra sued out execution of the decree against the surety Haridas alleging that no properties, moveable or immovable, of the judgment -debtor Priyanath was available for the satisfaction of the decree. Haridas filed objections against that prayer for execution. In substance he pleaded that the decree -holder could proceed against him after exhausting his remedy against the judgment -debtor, and that the prayer for execution against him was not maintainable in law. The executing Court rejected his objections on the findings that the decree -holder had sought execution against the surety after having abortively attempted to recover the decretal money from the judgment -debtor and that there was no legal hurdle in the way of the decree -holder seeking recovery of the outstanding sum from the surety.;

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