SAKHARAM LAHANUJI MALI Vs. MAHADEO VENKAT

JUDGEMENT

(1.) IN 1932 Sakharam and Laxman obtained a simple money decree against Barkaji and Baliram, and in 1934 Gaurishanker stood surety for the performance of that decree. In 1936 Venkat obtained a simple money decree against Barkaji and Baliram. Subsequently Rs. 605 was realized from Gaurishankar in execution of the decree of Sakharam and Laxman. The question is whether Venkat is entitled to claim rateable distribution of such assets. The lower Court has held that he is. Section 145, C.P.C., provides that where any person has become a surety for the performance of the decree, the decree may be executed against him to the extent to which he has rendered himself personally liable in the manner provided for the execution of the decree and such person shall, for the purposes of appeal, be deemed a party within the meaning of Section 47. The liability of the surety is co-extensive with that of the judgment-debtor, and the effect of this is, in my opinion, that the surety must be deemed to be a judgment-debtor. As the assets were not obtained in execution against Venkat's judgment-debtor, Venkat therefore is not entitled to claim rateable distribution. The opposite view would lead to an anomalous position. If part of the money realised from Gaurishankar is taken by Venkat, then Barkaji and Baliram will be liable to Sakharam and Laxman for the balance of the decretal amount, and Gaurishankar whose liability is co-extensive with theirs would also be liable; but Gaurishankar did not undertake to stand surety for all decrees against Barkaji and Baliram, and Venkat's decree against Barkaji and Baliram was not in fact obtained till a year or two later. For these reasons I hold that Venkat is not entitled to claim rateable distribution. The application for revision is allowed with costs in both Courts. No counsel's fee as no certificate is filed.