C KANAKAIAH TEXTILES AND CO Vs. VALLABHANENI VENKATA SUBBAMMA

JUDGEMENT

(1.) The short point that falls for determination in this Letters Patent Appeal is whether the surety bond furnished by Vallabhaneni Raghavayya in the Sub Court, Vijayawada, in O.S. No. 22/1953 ensures to the benefit of the decree holder appellant after the transfer of the said suit to the District Munsifs Court, Vijayawada. In order to appreciate this point, we have to refer to certain facts:

(2.) The appellant herein, a firm carrying on business at Vijayawada filed a suit in the Subordinate Judges court at Vijayawada for the recovery of a sum of Rs. 4,000 and odd in January 1953. While the suit was pending in that court, the plaintiff-appellant applied for the attachment of the properties of the defendants in the suit. One Vallabhaneni Raghavayya, the predecessor in interest of the respondents in this appeal, filed a surety bond of immoveable property for a sum of Rs. 4,800 Ex. A-1 and the bond was accepted and the properties of the defendants were released from attachment on 17-12-1953. Meanwhile, due to the enhancement of the pecuniary jurisdiction of the District Munsifs Court, the suit was transferred to the District Munsifs, Court, Vijayawada and was numbered as O.S. No. 418/1954. In that suit the plaintiff-appellant got a decree against the defendants and in execution of that decree, he filed E. P. No. 499 of 1956 and sought to enforce the bond against the surety by proceeding against his properties mentioned in the bond The surety contested that petition and pleaded that he had stood surety and executed the bond in the sub-court, Vijayawada, and was therefore not liable to be proceeded against the execution of the decree by the Munsifs Court Vijayawada. The District Munsif negatived this contention of the surety and directed the decree holder to proceed with the execution of the decree by the sale of the properties mentioned in the surety bond. Aggrieved by the order of the District Munsif, the surety preferred an appeal to the District Court but that appeal was dismissed and the order of the trial court was upheld. Aggrieved by that order, the surety came to this court in second appeal C.M.S A 55/1959. This appeal came up before our learned brother Justice Sharfuddin Ahmed who allowed the appeal and set aside the order of the court. Hence this Letters Patent Appeal.

(3.) In this appeal it is contended by Shri D. Narasaraju, learned counsel for the appellant, that the learned Judge has erred in holding that the surety bond given by Vallabhaneni Raghavayya did not enure to the benefit of the decree holder after the transfer of the suit to the District Munsifs Court as the bond was given only for a decree to be passed by the sub-Court and not the other court, when the intention of the surety was to pay the plaintiff a particular amount that may be decreed in the suit. In this connection, the learned counsel has placed his reliance on the case of G. Bapaiah v V. Subbaiah, AIR 1960 Andh Pra 507. On behalf of the other side it is contended by Shri P. Ramachandra Reddi, learned counsel, that the terms of the bond have to be strictly construed so as not to impose any obligation on the surety more than what is imposed by the bond itself. The learned counsel further contended that when the bond is that if any decree is passed in the suit on the file of the subordinate Judge, Vijayawada, he has no objection to pay the amount and as the decree now passed is not by that court, but by a different court, the original bond given by the surety would not enure to the benefit of the decree holder. In this connection, the learned counsel relied on the cases of Paramasivam Pillai v. Ramasami Chettiar, (1939) 1 Mad LJ 557 = (AIR 1939 Mad. 152), Dharamapuram Mutt v. Muhamad Usman Sahib, (1940) 2 Mad LJ 831 = (AIR 1941 Mad 151) and Mahammad Sheriff v. Hussain Ghouse, (1939) 2 Mad LJ 816= (AIR 1939 Mad 933).