RAMI REDDI CHINNA VOBULA REDDI Vs. KETHEPALLI GURUMURTHI

JUDGEMENT

(1.) This civil miscellaneous second appeal arises in connexion with the execution of a decree against a surety. The surety is the appellant. The question in this second appeal is whether the execution application is barred by limitation. The first Court held that it was barred and in appeal this decision was set aside. The facts briefly are as follows:

(2.) In the course of a suit prior to its termination an order for attachment before judgment of the judgment-debtor's properties was made by the Court. His moveables were attached by the Amin and were by him entrusted to the custody of the appellant who executed a surety bond. After stating that the bond is executed by the surety, the document ends as follows: ...The said Amin put me in possession of the said items of property of the value of rupees two hundred and fourteen. I shall therefore produce the said items of property whenever called upon by the Court. If I fail to so produce, I and my heirs shall be bound by such orders as may be passed by the Court. To this effect is the security bond written and given.

(3.) Then occurs the signature of the surety. The bond is dated 7 November 1921. The decree in the suit was passed on 7 September 1922. An application was put in by the transferee decree-holder respondent to recognize the transfer of the decree in his favour. On 7 November 1925 the present application to execute the decree against the surety was filed. The date of the decree being 7 September 1922 it is clear that if Art. 182, Lim. Act, applies, the application is barred by limitation. The first Court held that it was so barred. In appeal the learned Judge held that the cause of action against the surety arose only on 5th December 1925 when in response to the application for execution he appeared before the Court and demurred to produce the property by setting up the plea of limitation. The learned Judge says that the cause of action on the bond as against the surety did not arise until 5th December 1925 and therefore the application is not barred by limitation. According to him the question of limitation is governed by Art. 65, Lim. Act, but no authority has been cited in support of that position. The learned Judge's reasoning may be stated in his own words: The bond executed by respondent 2 was a conditional one and the cause of action for enforcing the terms thereof would arise only on the breach of its condition, viz., when the respondent fails or refuses to produce the property when called upon by the Court to do so. To an action on such a bond, Art. 65, Lim. Act, would be applicable.