HIGH COURT OF RAJASTHAN
Referred Judgements :-
KAMBHAM RAMAMURTHI VS. SAGRAJU TIRPUTIRAJU
MATHURA DAS VS. HARI SHANKER
GENDA MAL VS. L. SUKHDARSHAN LAL
Click here to view full judgement.
CHHANGANI, J. -
(1.)THESE two appeals raise a common question of law and shall be disposed of by one judgment.
(2.)THE facts are similar and may be briefly stated as follow: Regarding Appeal No. 24/1957: Jankilal Vs. Kalyanmal (1 ).
Laxminarain the predecessor in interest of Kalyanmal decree-holder filed a suit against Ramdayal and Utsav Lal for the recovery of money and applied for attachment before judgment of some movable property. The application for attachment before judgment was allowed and in pursuance of the order of the Court the attaching officer attached, on 26. 5. 1955, some movable properties of the judgment-debtors Ramdayal and Utsavlal. The properties were made over to Jankilal-supurddar on his executing a suppardnama on the same date by which he undertook to produce the attached properties at Raila whenever required for auction and in default to pay their price. The suit was eventually decreed and the decree-holder took out execution. The surety Jankilal was called upon to produce the properties but he failed. Thereupon the decree-holder proceeded to enforce his liability under Sec. 145 C. P. C. The suparddar Jankilal resisted proceedings under sec. 145 CPC on various grounds. In the first instance he denied having received the attached properties from the attaching officer and executed suppardnama, Alternatively he pleaded that the remedy against him was not competent under sec. 145 CPC and that he could only be proceeded against in a regular suit. The execution Court over-ruled the objections of the supurdar and held him liable. The appellate court in appeal agreed with the conclusion of the execution Court. Hence this second appeal by the Supurddar Jankilal. Regarding Appeal No. 25/1957: Kalyanmal Vs. Laxminarain.
Laxminarain plaintiff-respondent had instituted a suit against Ramdayal and Utsavlal and during the pendency of the suit obtained an order for attachment before judgment. The attaching officer attached some properties belonging to the defendants (Judgment debtor) on 10. 9. 1955. The attached properties were handed over to Supurddar Kalyanmal, the appellant, on that very day. Kalyanmal executed a suppardnama undertaking to produce the properties in connection with the execution of the decree. The suit of Laxminarain resulted in a decree for Rs. 1,540/15/9 with costs and future interest on 18. 6. 1956. The plaintiff-respondents took out execution of his decree and during execution proceedings Kalyanmal the supurddar was asked to produce the attached property for the purposes of sale vide court's notice dated 24. 9. 1956. Despite service of notice surety-suparddar did not produce the attached properties for sale and consequently the decree-holder presented an application to the lower Court on 23. 10. 1956 for attachment and sale of his properties. The execution court proceeding under sec. 145 CPC issued notice to the supurddar to show cause as to why his property should not be attached. The supurddar filed objections in response to this notice. He pleaded that the attached properties were not made over to him nor did he stand as a surety on that account. He stated that the properties all along remained with the judgment-debtors and as such, he could not be held liable. He also denied the execution of the bond. The execution court over-ruled the appellant's objections and held him liable under sec, 145 CPC. The appellate court has affirmed the findings of the execution court. He has filed this appeal.
In both these appeals, the learned counsel for the appellants in the first instance has contended that there is no satisfactory proof on record that the two appellants received the attached properties as supurddars and executed the bonds undertaking to produce the attached properties in connection with the execution proceedings. These are pure findings of facts and there is ample evidence on record including the statements of the attaching officers that the two appellants received the attached properties and undertook to produce them as and when required. These findings cannot be allowed to be questioned in second appeal and I have no hesitation in rejecting the appellants' contentions in this behalf.
The most important question, however, raised in both these appeals is whether a supurddar can be proceeded against under sec. 145 CPC. Mr. Kishore Singh's first contention in this connection is that the supurddar cannot be considered as a surety. The very expression "surety" presupposes a principal and there can be no surety in the absence of a principal, A supurddar receiving the attached property merely promises to restore the properties entrusted to him or to indemnify by paying their price on failure to produce the attached properties. He is thus responsible in his own behalf and there is no principal for whose obligation he offers himself as a surety. The argument is no doubt plausible but I am not prepared to accept it on a closer examination of the law on the point. Sec. 145 CPC directs that a decree or order may be executed against a person who has become liable as a surety. The section is not confined to surety as such; on the other hand it purports to determine the liability of a person who has become liable as a surety. The words "has become liable as a surety", should be very liberally construed and should not be confined to surety in the strict sense of the term as used in the Contract Act. Any person undertaking the liability which may be in the nature of a surety, liability should on a proper interpretation and construction of sec. 145 CPC fall within its sphere. In this view I am supported by the following observations made in Genda Mal Vs. L. Sukhdarshanlal (1 ). "the word "surety" in sec. 145 CPC is used in the wider sense and applies even to cases where there may be no undertaking for the payment of money The view of the Full Bench that supurddar is liable as a surety under sec. 145 CPC should prevail. The point which was emphasised in the Full Bench but has been over-ruled, speaks of a person who has become "liable as surety" "and does not say "who is a surety himself". " On general principles also the proper conclusion to be drawn is that a supurddar who receives properties from an officer of the court and undertakes to produce the property in court should not be permitted to evade his liability on a requisition by the court and to insist that he can only be proceeded against in a regular suit. A sufficient degree of solemnity should attach to the processes of the courts and actions taken or purported to have been taken under them and generally speaking the parties should not be allowed to be handicapped on account of them. To require that either the court or the attaching officer or the decree-holder should be compelled to file a suit against a supurddar for the recovery of the property handed over to him under a process of court certainly means handicapping the parties and belittling the solemnity of the processes of courts. On these considerations and on a liberal and wider interpretation of the expression "become liable as surety" I reject the contention of Mr. Kishore Singh.
Next it was contended by him that the appellants' cases do not fall under any of the clauses of sec. 145 CPC. Clause (a) refers to the surety's liability for the performance of any decree or any part thereof. Evidently this clause cannot be attracted in the case of supurddar. Clause (b) relates to a person's lability for the restitution of any property taken in execution of a decree. The question which calls for determination is whether a supurddar's case can be brought within the language of clause (b ). Mr. Kishore Singh's suggestion is that this clause is intended for cases in which restitution is sought against a party who has taken a property in execution of a decree or an order in his favour, namely, to a decree-holder who while executing his decree has furnished a security for restitution. A supurddar, according to him, does not take out property in execution of a decree and cannot be said to -be responsible for its restitution. This interpretation of clause (b) has not been accepted in some of the cases. In Mathura Das Vs. Harishanker (2) a Division Bench of the Allahabad High Court held as follows : - ''therefore, under cl. (b) of sec. 145 of the Code, each of the appellants to whom the property taken in execution of a decree had been entrusted, became liable as surety for restitution of the property; and the decree should be executed against him, as if the decree had been made against him, to the extent to which he had rendered himself personally liable. Under the supurdnama each of the appellants had undertaken to deliver the property whenever and wherever the executing court ordered him to do so; and he had also undertaken to pay its value if he failed to deliver the property, and in case he failed to deliver the property the Court could recover the amount from his person and property, Consequently, as surety his liability was the same which he had himself undertaken under the the supurdnama. " The position was more forcefully explained in Nazir Ahmad Vs. Bakhsi Ram (3) where the following observations of Spencer J. in an earlier Madras case were quoted with approval - "the word restitution in sec. 145 (b) CPC must be read in wide and general sense of restoration or making good that which is deficient; and that the Court can under that section proceed in execution against a surety who has failed to perform his conditional undertaking to produce the judgment-debtor's property when called upon to do so. " Looking to the purpose of sec. 145 CPC I am in clear agreement with the wider interpretation of the expression "restitution of the property taken out in execution of a decree occurring in cl. (b ). There can be no objection in holding that a supurddar really takes out property which has been taken out in connection with the execution of a decree and when he is called upon to produce the property he is arranging for its production or restitution. I am inclined to think that a supurddar's case does fall within the language of cl. (b) of sec. 145 CPC.
Further I am also of the opinion that the supurddar's liability can also be enforced under sec. 145 (c ). Under that clause a person becoming liable as a surety for the payment of any money or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceedings consequent thereon, can be proceeded against. It is contended that a supurddar does not become liable either for the payment of money or the fulfilment of any condition under an order of the Court and therefore clause (c) cannot be attracted in his case. For a proper determination of the contention, it will be useful to set forth in detail the circumstances in which a supurddar undertakes liability. Whenever a court directs the attachment of property it issues a warrant for the purpose. The officer entrusted with the execution of warrant attaches movable properties by actual seizure. Generally speaking he possesses no adequate means for the safe custody and preservation of the properties attached and consequently a practice approved by the courts has developed according to which the attaching officer entrusts the property to a suparddar after obtaining a supardnama or bond from him under which he undertakes to produce the properties for being sold in satisfaction if of the decree. The supardnama is executed in favour of the Court and the attaching officer produces it in Court which acts upon it. Bearing in mind that the properties are entrusted; to a supurddar according to a practice approved by Courts; and that the bonds are produced â€¢ in and accepted and ac;ed upon by Courts, it may safely be held that supurddars take the properties and agree to produce them when required by the Court under an implied order of the Court. On a liberal interpretation of the language of sec. 145 (c) CPC a supurddar's case does fall within that section. On these premises the supurddar cannot resist his liability under sec. 145 CPC.
Mr. Kishore Singh in the end urged that whatever may be the position of the supurddar receiving properties in the execution of a decree the supurddars in the present cases are no; liable as the properties were received by them no; in execution of a decree but in execution of a warrant of attachment before judgment. I do not consider that the seizure of the property in connection with the attachment before judgment and entrustment of the same to the supurddar should make any difference so far as the supurddar's liability is concerned. Attachment before judgment is effected in a manner provided for the attachment of property in execution of a decree and as soon as a decree is passed and an application for execution is filed the property is considered to have been taken oat in execution of a decree.
(3.)IN the following cases cited by Mr. Kastoormal the supurddar's liability was enforced under sec. 145 CPC in respect of properties attached before judgment. Nazir Ahmad Vs. Bakhshi Ram (3 ). Kambham Ramamurthi Vs. Sagraju Tirputiraju (4)
I am, therefore, unable to accept this contention. All the contentions of Mr. Kishore Singh having been rejected, the appeals and are without substance and are hereby dismissed with costs.
Copyright © Regent Computronics Pvt.Ltd.