AMIN ABDUL KADAR MURTASA Vs. JIVRAJ OTMAL RATNAGIRI BHAGIDARI

JUDGEMENT

(1.) SPECIAL Civil Suit No. 3 of 1967 was filed by the respondent - firm for recovery of an amount of Rupees 22,717. 12 and costs with interest at 12 per cent per annum from the date of suit till recovery. The defendant put in contentions disputing the claim on plaintiff. After filing the suit, an application for attachment before judgment under Order 38, Rule 5 of the Civil Procedure Code was made by the plaintiff. The property was attached but the attachment was removed as the defendant furnished security in the shape of a surety bond executed by the present appellant agreeing to hold himself liable for the decree to be passed to the extent of Rs. 25,000/ -.

(2.) SUBSEQUENTLY on November 14, 1968 a consent decree was made by the trial Court for Rs. 22,717. 12, costs of the suit and interest at 12 per cent per annum but subject to a condition that if payments were made as detailed in the terms of compromise, the decree was to be entered as satisfied provided the amount of Rs. 20,000/- was paid. After this decree was made, the respondent firm made an application for execution and had the property of the appellant - surety attached on September 9, 1969. On October 8, 1969 the attached property was ordered to be sold for satisfaction of the decree. Against this order for sale, the appellant - surety filed the present appeal.

(3.) WHEN this matter reached hearing before Vaidya, J. , one point was placed before the learned Judge, namely that there is a conflict of decisions of two Division Benches of this Court. The learned Judge having found that the conflict exists referred this matter to a Division Bench. The point shown to exist was whether by reason of the fact that a decree by a compromise was made, the surety who had agreed to pay the decretal amount was discharged.