- (1.) THIS is a second appeal by the decree-holder in execution proceedings.
(2.) THE facts giving rise to it are that the appellant got a decree against one Wali Mohammad on 27th of October, 1952, for Rs. 226/11/ -. THE first application for execution of that decree was presented on 24th of March, 1947, but dismissed for want of prosecution on 26th of April. 1947. The second application for execution was presented on 13th of May, 1947. A notice under order XXI, Rule 37 was issued against the judgment-debtor but it was not served as he was reported to have gone out. The judgment-debtor's son, however, appeared on 4th of November, 1947, and he voluntarily presented a document which has been called surety bond. It was written therein that the decretal amount together with interest till that date amounted to Rs. 377/15/- that Rs 27/15 -. were paid in cash and the remaining Rs. 350/-would be paid by instalments of Rs. 5/- per mensem. The file was then consigned to record. On 13th of October 1949, the decree-holders presented a third application for execution and this time the relief was sought against Chand Mohammad. A notice under Order XXI, Rule 22 was issued against him. It was not served on his person but it was pasted on his house. Then a warrant under Order XXI Rule 37 was issued against him on 18th of July, 1950, but it was returned unserved, Another warrant was again issued on 27th of July, 1950, but it was also returned with the report that Chand Mohammad was avoiding service. On 19th of August, 1950, the decree-holder's counsel presented a receipt for Rs 30/-saying that they were received from the judgment debtor and so the file was again consigned to record. Then on 25th of October, 1950, a fourth application for exection was presented and again the relief was sought against Chand Mohammad. This time Chand Mohammad made his appearance and presented an objection on 4th of November, 1950. It was contended by him that the decree-holder had no right to proceed in execution against him. that the decree-holder had obtained the surety bond from him by means of fraud and he was not responsible for the satisfaction of the decree which was passed against his father. It was also urged that the proceedings in the first two execution applications were without jurisdiction because the mandatory provisions of Order XXI Rule 22 of the Civil Procedure Code were not observed. This argument found favour with the executing court and the decree-holder's application was dismissed saying that the surety bond presented by Chand Mohammad was null and void since the court had no jurisdiction to proceed in the matter. The decree-holder went in appeal to the District Judge, Jodhpur but without success and hence, this second appeal. Learned counsel for the appellant has urged that the respondent did not raise any objection about the validity of the surety bond at the time when the third application was presented and, therefore, he was debarred from raising any objection to that effect at the time when the fourth application was presented, on the ground of res judicata. In support of his argument, he has referred to Balmakund vs. Firm Pirthi Raj Ganesh Das (1) and Mohanlal Goenka vs. Benoy Kishna Mukherjee (2 ). In the last case it was observed by Ghulam Hasan J. "that the principle of constructive res judicata is applicable to execution proceedings in no longer open to doubt. . . . . . . . . . It was also observed that - "there is ample authority for the proposition that even an erroneous decision on a question of law operates as 'res Judicata' between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'res Judicata. ' A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties. " It may be pointed out that no exception can be taken to the observations of their Lordships of the Supreme Court which this Court is in duty bond to accept, but these observations do not apply to the facts and circumstances of the present case. In this case, the respondent Chand Mohammad does not seem to have appeared in the court even once after he filed his so called surety bond on 4th of November, 1947, and before he presented his objection petition on the 4ih of November, 1954. Even the notices which were issued by the executing court at the time of the third application were not served upon him. The question of the validity of the surety bond never came before the court till the 4th of November, 1950, and the court had no occasion to pronounce its view on the matter. Their being no earlier decision of the court, the question of Res Judicata does not arise. Learned counsel has tried to urge that the respondent had paid Rs. 30/- to the decree-holder in execution of the third application and, therefore, it should be taken to be proved that he raised no objection regarding Order XXI, Rule 22 or the validity of the surety bond which he could at that time. This contention is also not tenable because the record of the executing court does not show if Chand Mohammad appeared in the court and paid Rs. 30/ -. It was the decree-holder who allowed his application to be dismissed by saying that he had received Rs. 30/- from Chand Mohammed. Chand Mohammad has denied having paid anything to the decree-holder after the execution of the surety bond. The decree-holder's admission in his own favour is of no avail to him. Thus the objection regarding 'res-judicata' is fit to be dismissed. We have now to see whether the surety bond given by the respondent is valid and can be executed against him. As stated above, both the courts have held that all the execution proceedings taken out in the court at the time of the second application were without jurisdiction because no notice under Order XXI Rule 22 was ever issued against the judgment-debtor Wali Mohammed. In support of this view, the executing court referred to the case of Karali Prasad Roy vs. Probodh Chandra Mitra (3 ). The first appellate court also took the same view and further referred to Rm. P. Ar Ramanathan Chettiar vs. Pl. Ar. Lakshamanan Chettiar (4) to strengthen the argument. It however;appears that both the courts have not been able to follow the correct import of these rulings and so the manner in which they have been applied is not correct. It is true that Order XXI Rule 22 requires that when an application for execution is made more than a year after the date of the decree or against the legal representative of a party to the decree, it is the duty of the executing court that it must is sue a notice to the person against whom execution is sought, requiring him to why the decree should not be executed against him. If such a notice is not issued to the person against whom execution is applied for, then certain proceedings taken in his absence like attachment or sale of his property would be void. In the case of Ragunath Dass vs. Sunder Das Khetri (5), it was observed by their Lordships of the Privy Council that "a notice under sec. 248 (which now corresponds to O. XXI, r. 22 C. P. C.) is necessary in order that the Court should obtain jurisdiction to sell property by way of execution as against the legal representative of a deceased judgment-debtor. " This view has been consistently followed by almost all the High Courts in India even since this decision and there are a number of cases in which the sale of the judgment-debtor's property without a notice under O. XXI, r. 22 where it is applicable, has been held to be invalid. Since their Lordships of the Privy Council used the word 'jurisdic-tion' in the above observation and since similar language was employed in the cases relied upon by the courts below, it appears that they have made some confusion in not following the distinction between a total lack of jurisdiction and jurisdiction of the court to proceed in certain matters It may be pointed out that their Lordships had clearly mentioned that a notice under sec. 249 of the old Civil Procedure Code was necessary "in order that the Court should obtain jurisdiction to sell property by way of execution. " Their Lordships did not remark that the executing court had no jurisdiction at all before a notice under O. XXI, r. 22 was issued. It must be clearly understood that it is one thing to say that there is a total lack of jurisdiction in the court and it is a very different thing to say that the court has jurisdiction for certain purposes but it lacks jurisdiction for other proceedings so long as a particular provision of law is not complied with. In the present case, the executing court was quite competent to execute the decree and there was no inherent lack of jurisdiction in the court. If there were in-harent lack of jurisdiction, then it could not even entertain the application for execution. What O. XXI, r. 22 of the Civil Procedure Code require is that before taking proceedings against the judgment-debtor in executing the decree, the court must give him a notice if the execution application has been presented more than one year after the decree or if the execution is sought against the legal representative of a party to the decree so that the judgment-debtor may not be taken unawares. As soon as this formality is observed and a notice is served upon the judgment-debtor, the so called lack of jurisdiction comes to an end and the executing court can proceed to attach or sell his property or take any other proceeding which it may consider necessary. Order XXI Rule 22 (2) goes a little further and provides that the court is not precluded from issuing any process in execution of a decree without issuing the notice thereby prescribed if it consider that the issue of such notice would cause undue delay or would defeat the ends of justice. But in such cases, the Court must also record the reasons while taking recourse to this provision. The court below were, therefore correct only in so far as it was held by them that the executing court ought to have issued a notice under Order XXI Rule 22 before proceeding against the judgment debtor Wali Mohammed. If the executing court has attached and sold the property of the judgment debtor namely, Wali Mohammed that would have certainly been void. But as explained above, this does not mean that the executing court could not accept even the surety bond if the judgment-debtor had himself appeared in the court and produced it without and objection. In the case of Bandu Hari vs. Bhagya Laxman (6) it was held that - "even though a notice under O. 21, R. 22, Civil P. C. which has been enacted for the benefit and protection of judgment-debtor, if he actually appears in execution Proceedings and raises various objections, the object of giving him a notice under R. 22, which is to afford him an opportunity to show cause against execution and to satisfy the decree before execution issues, has been achieved that if he does not then object to the execution on account of the failure to issue such a notice he must be deemed to have waived the notice and that he cannot subsequently be allowed to challenge the sale on the ground that such notice had not been issued" In the present case, although the executing court had not issued any notice against the judgment debtor Wali Mohammed the present respondent Chand Mohammad appeared voluntarily and presented an application on 4th of November 1947 that he would pay the decretal amount of behalf of the judgment debtor Wali Mohammed. If the judgment debtor had also appeared voluntarily and if he had produced Chand Mohammed as his surety, then, in my opinion, this surety bond would not have been void simply because the notice under Order XXI Rule 22 was not issued to the judgment-debtor The protection given by Order XXI Rule 22 can ceitainly be waived by the judgment-debtor if he so desires. The courts below were, therefore, not correct in considering the said application void on the simple ground that a notice under Order XXI, r. 22 was not issued against the judgment-debtor. The real points for determination in this case were (1) whether the application of 4th of November, 1947 presented by the respondent could be taken to be a surety bond under the law, (2) whether it was with consideration or whether it was obtained from the respondent by fraud, as alleged by him and (3) whether the execution of the decree could be taken out against the respondent on its basis.
(3.) LEARNED counsel for the appellant has urged that the application dated4-ll-1947 is a surety bond since it is called a jamanatna-ma and that the appellant could proceed against the respondent according to the provisions of sec. 145 of the Civil Procedure Code. It is true that sec. 145 of the Civil Procedure Code provides that the decree or order may be executed against ''any person who has become liable as surety for the performance of any decree or any part thereof" to the extent to which he has rendered himself personally liable in the manner provided in the Code for the execution of decrees and such person shall be deemed as a party with in the meaning of sec. 47. Therefore, if the court comes to the conclusion that a certain person has become liable as a surety, then it can certainly proceed against him. as mentioned above. But we have, to see whether the respondent had become liable as surety. The term 'surety' has been defined in sec. 126 of the Indian contract Act which runs as follows - "125. A "contract of guarantee" is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called 'the surety, the person in respect of whose default the guarantee is given is called the "principal debtor", and the person to whom the guarantee is given is called the "creditor". A guarantee may be either oral or written. Thus this section contemplates three parties to a contract of guarantee, namely, the creditor, the debtor and the surety. Sec. 145 of the Indian Contract Act further provides that - "in every contract of guarantee three is an implied promise by the principal debtor to indemnify the surety ; and the surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee, but no sums which he had paid wrongfully. " This clearly shows that the surety is generally a person who is put up by the debtor to give a contract of guarantee to perform his promise or discharge his liability in case of his default. If a certain person is not produced by the debtor as surety and if such person volunteers to perform the promise or discharge the liability of the debtor without his consultation, the debtor cannot be responsible to indemnify him. In the case of K. V. Periyamiana Marakkayar and Sons vs. Banians & Co. (7) it was observed following Hodgson vs. Shaw (8) - "that a person cannot make himself the creditor of another by volunteering to discharge the obligations of the other and that the rights of the surety against the principal-debtor can only arise where the suretyship has been undertaken at the request, actual or constructive, of the principal debtor. " This view was followed in the case of Ram Chandra B. Loyalka vs. Shapurji N. Bhowna-gree (9 ). In that case it was observed that - "a contract of guarantee involves three parties the creditor, the surety and the principal debtor and I agree with the view taken by the Madras High Court in 1924 Mad. 544 that a contract of guarantee involves a contract to which those parties are Privy. Of course, the contract need not be embodied in a single document, but I think there must be a contract or contracts to which the three parties referred to in sec. 126 are privy. There must be a contract, first of all, between the principal debtor and the creditor. That lays the foundation for the whole transaction. Then there must be a contract between the surety guarantees the debt and no doubt the consideration for that contract may move either from the creditor or from the principal debtor or both. But if those are the only contracts, in my opinion, the case is one of indemnity. In order to constitute a contract of guarantee there must be a third contract, by which the principal debtor expressly or impliedly requests the surety to act as surety. Unless that element is present, it is impossible in my view to work out the rights and liabilities of the surety under the Contract Act. " Thus, ordinarily, a surety is put by the debtor. It is not meant to say that nobody can stand as a surety without being produce by the debtor. It is open to every body to stand surety for a debtor without consulting him and without expecting any return from him but in that case, there should be some consideration for the contract from the creditor's side, for instance, the creditor may agree not to attach or sell the property of the judgment-debtor for sometime, or for ever or he may release the attached property on account of the assurance given by the surety. But if there is no consideration from the creditor's side, then there would be no valid contract in law and the surety's assurance would be a mere moral guarantee and not a contract of guarantee. To be more precise if A says to B that he would repay C's existing debts to him even though B does nothing for A or C, then A's assurance would not be a contract of guarantee It would be a mere moral assurance. Such an assurance would not be surety bond even though, it is put in writing and presented in the court. In the present case, the judgment-debtor never came before the executing court. He could not even be served with any notice. It was reported by the process server that he was out of Jodhpur and was not available. He was not arrested nor was his property attached by the executing court. It is not clear from the record why the respondent appeared in the court voluntarily on 4th of November, 1947 and presented this application. Although it is called Jamanatnama, I do not think that it can be called a surety bond in the correct sense of the term firstly because the judgment-debtor was never a party to this contract and secondly because the decree-holders offered no consideration to the respondent. If the respondent paid money in the executing court, it was only because he felt a moral duty to pay his father's debt. ;